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Sunday, January 30, 2011

What if the executor has dementia?

Despite the advice of estate-planning lawyers that clients review their wills from time to time, plenty of people simply don't look do that. It's not unusual for people to have the same will for many years. This can lead to a will that is sadly out of date.

A major decision that goes into any will is the choice of executor. This appointment has to be kept up to date. If not, your estate could be left without an executor who is able and willing to administer your estate.

What would happen if the executor you named in your will has become incapacitated by dementia? Obviously your executor wouldn't be able to carry out executor's duties. What happens from that point depends on the wording of your will. Hopefully you have named an alternate executor to take over. But even more than that, you must look at the wording that controls how and when the alternate may step in.

Any executor has the choice of refusing to act. He or she must sign a renunciation (a document in which he or she voluntarily steps down). A person suffering from dementia is probably not mentally able to sign any legal documents, including a renunciation.

Not so long ago, wills used to say that your alternate executor could take over only if your first choice died before you. That's not going to be any help at all if the first choice of executor is alive, but suffering from dementia and unable to voluntarily renounce.  It would require a court order to remove the executor and to allow the alternate to step in.

More modern wills say that an alternate executor can step in if the first choice executor "refuses or is unable" to act. This broader wording may effectively remove the executor, clearing the way for the alternate to take control of the estate.

If you don't have an alternate executor named, and your first choice is prevented from acting due to incapacity, the court will have to appoint an administrator.

The best way to prevent this kind of situation is to review your will occasionally to ensure that all provisions, including the choice of executor, are up to date.

1 comment:

  1. If the sole executor has dementia and his spouse has power of attorney does the spouse automatically step in as executor

    ReplyDelete

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