What do you do if the EXECUTOR dies during probate?

I have a case going right now where the Executor has died before distributing the entire estate. In fact, he was the sole heir but for various reasons never got around to finishing the probate… for 5 years! The fact that he died does not change the fact that he, or his estate, is entitled to the assets. However, someone still needs to finish the probate process.

If there are co-Executors then the remaining one can serve to finish the case. I have had that happen before. It’s pretty easy. You petition to the Court, on an ex-parte basis, that the co-administrator, or co-executor, died and amended letters are issued showing the surviving one serving alone. It’s a little more complicated if the Executor or Administrator dies when they were acting alone.

In that case the same rules that apply to any other probate apply. If there is a back up Executor named in the will they have priority to serve. If there is no will, or no named back-up named, then the normal probate code order of priority prevails. Note it’s the order of priority for the first, or main, decedent’s estate and NOT the order of priority for the deceased personal representative’s estate. That is, the heirs of the deceased Executor (or the heirs of any deceased beneficiary) really don’t have much of a position in the original case even though they may receive the assets once the probate is done. Thus you look at the will and in the case I am currently working on there is a back-up Executor named. Thus it will be there job to finish the case.

There is work to get them appointed though! A petition for probate is needed, notice, publication and pretty much everything like a normal new probate. The only difference is you do not need to ask the will to be admitted to probate as it’s already been admitted. Then the probate is wrapped up and final petition is made to the Court to distribute the assets. You do not have to wait an additional 4 months so if your probate period has already expired you can move toward a final petition as soon as possible.

If you have questions about a successor executor case let me know. -John

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10.0John Bernard Palley
Wealth Counsel Member
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