How do I change executors?

I'm often asked this question, but before answering I always ask whether the person's whose Will it is (the testator) is still alive. In other words, are you trying to change the appointment of an executor in a Will, or are you trying to change an executor who is already in charge of an estate?

A person can change his or her choice of executor in the Will as long as he or she has mental capacity to do so. Changing the executor doesn't necessarily mean making a whole new Will. If you are happy with your Will other than the executor named, you can have a Codicil made that only changes the executorship. A Codicil is simply a new, brief document that amends your Will. It is much like a Will, in that all of the rules for Will-making also apply to Codicils. The advantage to having a Codicil made is that the process and the document are shorter and less expensive.

The Will and the Codicil must be kept together so that they can be read as one document.

If you are interested in changing an executor who was named in the Will but who has not done anything on behalf of the estate, and who doesn't want to do anything for the estate, that executor can opt out. The legal term for it is renouncing the right to be an executor. An executor might renounce if he or she is too ill to be the executor, if he or she has moved very far away, if he or she has lost mental capacity, if he or she doesn't get along with the family members, or for other reasons.

The important thing to remember about renouncing is that it can only be done right at the beginning of an estate before an executor does any work. Once the executor takes any steps at all as executor, he or she can't quit being an executor until the court says so.

If an executor renounces and there is an alternate executor named, the alternate executor can then take over and be in charge of the estate.

If there is no alternate executor named, you are left with a Will that is completely valid except that there is no executor to carry out the work. At this point, someone will have to be appointed as an administrator of the estate. The Will is still used, but the court will appoint an administrator to do the work that the executor would have done.

If an executor is part way through the job of being an executor and wants to resign from it, he or she must ask the court for permission. At that time, the executor will be required to give a full accounting of all financial transactions that he or she has done on behalf of the estate. This includes an update on the current balances and values of all accounts, properties and other assets, and an explanation for each expenditure. This process is sometimes called passing of accounts. Until the court has approved the accounts and dismissed the executor, he or she remains the executor.

Sometimes the family members want to change or remove an executor who they believe is not doing a good job. They want to remove someone who doesn't want to be removed. This is not easy. The court will not want to remove an executor who was chosen personally by the executor without very good reason. It is pretty nasty litigation most of the time, and not something that should be attempted lightly.