Q: I’ve been named an executor of my friend’s estate, but I don’t think I’m up to the task. Is it possible for me to decline?
A: Being named as an executor may be a tremendous honor, but the title also carries significant responsibility. An executor holds many important duties and often must perform these obligations while navigating the grief of losing a loved one. Furthermore, complications such as advanced age or physical distance may make it difficult to perform the tasks required.
While it is important to carefully consider whether to serve as an executor, you are not obligated to do so simply because you have been named in the will. Any person nominated as an executor may decline the role for any reason. This is accomplished by executing a form called a Renunciation of Nominated Executor. As the title suggests, by signing this form in the presence of a notary public and filing it with the appropriate court, you can renounce your right to serve as executor and allow the next person in line to serve. Note that you may only renounce the designation after the testator has passed away; you cannot preemptively decline the role.
Typically, a will names a successor executor, who will have priority to act as fiduciary in your stead. However, if no successor executor is named, or if the successor is unable to act, any of the beneficiaries named in the will may serve in a fiduciary capacity by obtaining court documents known as Letters of Administration c.t.a. (cum testament annexo, or “with the will annexed”). If none of the beneficiaries agree to serve, they may each designate another individual, provided they all agree on the same person (see SCPA §1418[6]).
An executor may also decline to serve after being appointed by the court, although this process involves additional hurdles. In such cases, the court-appointed fiduciary must request permission from the court to resign and demonstrate “good cause” for doing so. The executor must also provide a formal accounting to all beneficiaries detailing all financial transactions made since appointment, which can make the resignation process extensive.
If the court determines that resignation is in the best interest of the estate and no beneficiaries object to the accounting, it may permit the executor to resign. Ultimately, the decision rests with the court. Therefore, if you have doubts about serving as executor, it is far easier to decline at the outset than to step down midway through the process.
By Britt Burner, Esq. and Frank Oswald, Esq.
Frank Oswald, Esq. is an associate attorney at Burner Prudenti Law, P.C., focusing on trusts and estates. Britt Burner, Esq. is the firm’s managing partner, concentrating her practice on estate planning and elder law. Burner Prudenti Law, P.C. serves clients from New York City to the East End of Long Island, with offices in East Setauket, Westhampton Beach, Manhattan, and East Hampton.