Posted by Martin Heller Potempa & Sheppard, PLLC on April 27, 2022
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When you create your estate plans, one of the most important things to consider is who you trust to be your executor. This is more than just choosing the person you’re closest to. Being an executor comes with a lot of work and can be time-consuming, so you need to know that the person you choose is able to take on the responsibilities that come with this role. Executors are responsible for distributing assets according to the creator of the will’s wishes, among other tasks, so some might wonder what happens when the executor is unavailable. If the person you nominate to be the executor of your estate is unable or unwilling to act, the court will need to appoint someone else. To ensure you have more control over who the executor of your estate can be, you can also nominate an alternate should your first choice be unable to act.
Is Someone Required to Accept the Position?
While you would hope that the person you nominate to be your executor accepts, they aren’t required to. For many reasons, someone might not feel like they’re capable of properly handling the estate and committing to the amount of time this requires.
Why Would Someone Be Unable to Act?
In some cases, the person nominated might choose to decline the position. However, it can sometimes be more complicated than this. The potential executor may have been willing to act as executor at the time the will was created, but now lacks the capacity to do so. This can be from a mental or physical illness that has caused them to lose capacity. There is also always the chance that the person nominated passes away first.
Tennessee also has specific requirements regarding who can act as an executor. The following would make someone ineligible to serve as an executor in Tennessee:
The person has been convicted of a crime and received a prison sentence.
The person is a judge. A judge may only serve as an executor if they are a family member and if doing so doesn’t interfere with their judicial duties.
If there are concerns over the executor’s ability to properly fulfill their duties, it is possible for the court to remove them and appoint a new one. Discussing the situation with a probate litigation attorney is important if there is a reason to believe that an executor isn’t fulfilling their duties.
How Does the Court Select a New Executor?
If no one who was nominated to act as the executor is willing to accept, or if there was no one nominated, the probate court will need to nominate someone. The court will first look to the surviving spouse if there is one and then next of kin if the surviving spouse is unwilling to act. Loved ones may also volunteer themselves to act as the executor.
Get Help Planning Your Estate Today
You want to ensure that your wishes are followed and that your loved ones don’t have to deal with any avoidable stress after you pass away. To do this, you need assistance with estate planning. At Martin Heller Potempa & Sheppard, PLLC, our estate planning attorneys can help you with everything you need to properly plan your estate, including choosing your executor.
Contact us today to begin planning for the future.
If You Need Legal Assistance, Contact MHPS Law Firm Today