Being named as the executor of someone’s last will and testament means you will be responsible for protecting their assets, paying their debts and making sure their nominated beneficiaries receive the inheritance to which they are entitled.
Being an executor is a long-term commitment
You will need to follow the law and work with the deceased’s probate attorney to proceed through the probate process. This can take as long as two years, depending on the complexity of the estate and the willingness of the family to cooperate, so it is not a small undertaking.
To perform effectively as the executor of someone’s will, you must be able to make a long-term commitment to fulfilling their wishes, maintaining the integrity of their estate, and following the law to the letter. You will need to be honest and impartial, recognize that the family will be navigating an emotional period, and handle the stress that accompanies this role.
For some people, the responsibility of being the executor of a will is too great or would have too large of an impact on their life. As a result, they may wish to decline the position.
Renouncing the position of executor
It is important to remember that although the role of executor is voluntary and there is no obligation to accept it, there is a reason you have been chosen to fill this position. Therefore, you should give proper consideration to the deceased’s request.
If you decide to decline, you will need to renounce your rights as executor by signing a Renunciation of Nominated Executor form and getting it notarized[1]. This form will be served in the county court in which the deceased lived and will initiate the process of identifying and appointing a replacement executor.
The best time to renounce the position is when you are first notified you have been nominated to fulfill this role. Once the will has been admitted to probate, resigning becomes a more complicated process to which all beneficiaries must consent. Moreover, it has potential financial implications for the outgoing executor.
The process for renouncing the position of executor
When petitioning the court to renounce the position of executor, it is necessary to demonstrate that there is a good cause for resigning from the position. The petitioner’s request will be considered by the court, who will evaluate the request and the potential outcomes to determine whether allowing the executor to resign is in the best interests of the estate. If they cannot establish that the resignation of the nominated executor will not harm the estate, they may deny the request.
If the court agrees that the nominated executor may decline the role, they will need to identify a replacement. If the deceased’s last will and testament nominates a successor, they will be approached to take on the role. If no one else is listed as an executor of the will, the beneficiaries of the will may petition the court to assume the role.
If no one volunteers to assume the position, the beneficiaries will need to decide whether to approach a creditor to assume the role, hire an attorney to fulfill the position, or employ the services of a paid professional.
Choosing a paid professional to act as executor
The deceased’s attorney will usually be well placed to assume the role of executor as they are likely already familiar with the deceased and their wishes. If they are unable or unwilling to assume the role, the family of the deceased could consider employing a licenced fiduciary or a corporate executor to fulfill this function.
These paid professionals are experts in estate planning and distribution. Although the costs of hiring them can be high, the benefits of employing their expertise can be considerable. For example, they can reduce the amount of time it takes to complete the process as well as the emotional stress associated with navigating this complex area of law.
If the decision is made to hire a paid professional, it is essential to seek legal advice and ensure that the selected professional is accredited with a professional organization in accordance with the Professional Fiduciaries Act [2].
In conclusion, it is possible to decline the role of executor, but prior to doing so, you should consider why the deceased chose you. There may be a compelling reason for you to perform this final duty, or you may wish to perform this last act to bring peace and closure to their family.
There is no shame in declining the role if you feel that it would have negative repercussions for your own mental health or family life. If this is the case, be up front and honest as soon as possible after you are notified, and follow the process of renouncing the position so an alternative executor can be nominated and the estate can be settled as quickly as possible.
For tailored help and support in any area of estate planning, contact Lewis & Matthews, P.C. today.
Resources:
[1] https://www.courts.state.co.us/Forms/PDF/JDF912.pdf
[2] https://codes.findlaw.com/co/title-15-probate-trusts-and-fiduciaries/co-rev-st-sect-15-1-804/#:~:text=In%20the%20exercise%20of%20any,and%20the%20purposes%20thereof%20and
