{Read in 4 Minutes} As a Trust and Estates attorney, my team and I have handled the administrations of hundreds (if not thousands) of Estates over the past two decades. In the ordinary course of events, an Executor will receive Letters Testamentary from the Surrogate’s Court, then collect the assets of the Estate, pay off any debts and expenses, and finally, Account and make a distribution to the beneficiaries. However, not every Estate will continue along the usual path — and that’s what makes them each individually interesting.
When interviewing a potential new client to offer a Will for probate, I always have a long discussion with that potential client about whether they are willing to handle the job of being an Executor. Simply put, it is a great deal of work. In some Estates, the job may be a lot more labor-intensive, particularly if:
- there is real property to sell,
- there is going to be a probate contest,
- there are disputes about the assets belonging to the Estate, or
- there are beneficiaries who are as aggravating as they are endearing.
Some people question whether being an Executor is an honor or a headache, but almost all clients will decide whether or not they wish to undertake the job before they file papers with the Surrogate’s Court.
Sometimes after the Surrogate’s Court has appointed the Executor, the Executor will approach me to discuss their wish to resign their position. It doesn’t happen often — most Executors have given this a lot of thought before they sign up for the job — and those with concerns may decline to take it in the first place. However, sometimes an Executor will change their mind before concluding the business of the Estate.
The reasons for this may vary. Perhaps the Executor is in failing health, or they are providing care for a member of their family who is in failing health. Perhaps their professional commitments have become more demanding or perhaps the job has saddled them with an amount of stress larger than they thought they thought would be likely at the onset. While any good Trust and Estates lawyer can assist with all of these issues, sometimes an Executor decides that they simply want out. Can that happen? How?
Because the Surrogate’s Court appoints the Executor, the Executor can only resign with the permission of the Court. This involves the Executor filing a Petition with the Miscellaneous Department of the Surrogate’s Court, asking for permission to resign and, quite often, seeking the appointment of a Successor Executor. In the Petition, the potentially outgoing Executor should state their reasons for resigning or for wanting to resign, as well as a statement of the unfinished tasks in the Estate and their nomination for who should succeed them as the Successor.
While I can’t speak for the Courts or guarantee the results of any particular litigated matter, in my experience and observation, Courts generally allow Executors to resign. In many cases, the Court will require that the Executor file an accounting of their actions with the beneficiaries or with the Court itself. Upon the Court entering an Order allowing resignation, the Executor can turn the reins over to the Successor Executor to complete the task.
All in all, this is a fairly standard and straightforward proceeding that a Trusts and Estates attorney would be able to assist an Executor with, should the need arise.
For more information on this or any other topic, please contact me.