When someone nominates an executor or personal representative in their will, the testator (the person writing the will) is indicating that the nominated individual is the ideal candidate to oversee their estate and handle their final affairs when they pass away.
The key word here is “candidate”—just because someone is nominated to be an executor doesn’t mean they have to accept the appointment. Serving as an executor or personal representative is always voluntary, and you can be released from the obligation at any time (though it’s a little trickier if probate has been opened).
What to do if you don’t want to be the executor of a will
If the testator is still alive, the nominated executor can simply request that they be removed from the will. In rare cases where the testator refuses to amend their will, don’t worry—you can still decline the appointment after they pass away.
If the testator has passed away but probate hasn’t been opened yet, the nominated executor will need to inform the successor executor (if there is one) and the decedent’s family of their intention to decline the appointment. The nominated executor will then inform the court that they refuse to be appointed executor of the will, and the decedent’s family will need to find a new executor before petitioning to probate the will.
Once probate begins and the court officially appoints an executor for the will, the executor will need to formally resign in writing and submit their resignation to the court registrar. The executor is required to provide written notice to the estate’s interested parties at least 15 days before submitting their resignation to the court. The resignation notice will only be considered effective upon the appointment and qualification of a successor executor, and the executor will be responsible for the estate up until the point that he or she delivers the estate’s assets to the successor executor (ARS 14-3610). The executor will also need to submit an accounting of their actions thus far in the probate process, so that the court and the successor executor can clearly understand what needs to be done going forward.
What happens after an executor has been released from their obligation?
If the will nominates a successor executor, the court will appoint that individual to serve as the estate’s executor. If the will doesn’t name a successor executor, then the state’s probate laws will dictate who has priority to be appointed as the new executor. A surviving spouse typically has first priority, followed by adult children (no minors), followed by other family members (parents, siblings, grandparents, aunts, uncles, etc.). If there are multiple parties who petition to be appointed executor, the court will choose the most qualified individual with priority to serve. In rare situations where there is too much discord amongst the surviving family members to agree on the executor, or when the court cannot find a qualified family member to serve as executor, the court can appoint a third-party special administrator instead.
Keep in mind that the executor will not be released from their duty until a successor executor or special administrator is appointed by the court and receives the estate’s assets. The process of finding and appointing a new personal representative will need to be completed before the executor is released.
How is an executor formally appointed?
When someone passes away, the decedent’s family or nominated executor will need to submit the will to the county probate court along with a petition to open probate. The court will validate the will’s authenticity, and as long as nobody objects to the nominated executor, the court will formally appoint the executor. The executor will be issued Letters Testamentary giving them authorization to speak and act on behalf of the decedent’s estate, and the executor will use the Letters Testamentary to work with creditors, debtors, financial institutions, and beneficiaries to settle the estate.
How is an executor chosen when the decedent didn’t leave a will?
When someone passes away without a will, they die “intestate,” and their estate will be distributed according to the state’s intestacy laws. In such cases, the process of appointing an executor is similar to the process of replacing an executor who requests a renunciation. Priority will go to the decedent’s surviving spouse, their adult children, then other family members. The court can also appoint a third-party special administrator.
What are an executor’s responsibilities?
When the court is able to find an executor that is willing to manage the estate, the executor will have five primary responsibilities:
- Serve notice of probate to interested parties – the executor will need to serve notice of probate to the beneficiaries listed in the will along with any known creditors; the executor will also need to place an ad in the local newspaper announcing probate for the decedent, so that any unknown creditors have the opportunity to submit a claim to the estate.
- Initiate the transfer of non-probate assets – assets that have a designated beneficiary listed on the account are allowed to transfer directly to the beneficiary outside of probate. The executor will simply need to submit a copy of the death certificate to the financial institutions holding the assets. Examples of non-probate assets include retirement accounts, life insurance policies, trusts, real estate held in joint tenancy, and joint accounts with rights of survivorship.
- Value the estate’s assets – the executor will need to take an inventory of the estate’s assets and determine the fair market value. This is relatively easy for liquid accounts that have a monthly statement, but may require professional appraisal for real estate and personal possessions like art, jewelry, and collectibles.
- Settle the decedent’s liabilities – the executor will need to pay all of the decedent’s debts, outstanding bills (including funeral and burial costs), probate court costs, and attorney fees.
- File and pay final taxes – the executor will be asked to file a final income tax return for the decedent and pay any necessary income taxes. If the estate qualifies for estate taxes, the executor will also need to file an estate tax return and pay estate taxes.
- Distribute the estate’s remaining assets – once all of the estate’s liabilities have been settled, the executor will be free to distribute the remaining assets to the beneficiaries listed in the will.
Do You Need Help with Probate Matters?
As you can see, AZ probate laws can be complex. It requires a number of steps and without the right approach, it’s easy to get lost in the details.
At JacksonWhite, we can make probate a clear, easy-to-understand process. If you’d like help with probate matters, call the talented team at JacksonWhite Law today.
We can help explain your legal options and direct you to the probate solution that works for you and your loved ones.