Resign as Executor of NYC Estate
In New York, individuals nominated in a Will may become Executors of the decedent’s estate. (Individuals designated on consent are called Administrators, cta.) Being an Executor is a voluntary role and the nominated executor may refuse to act by submitting a renunciation to Court. If, instead, the nominated executor wants to accept the role, he or she will need to get appointed by the Court. Once appointed, if the nominee no longer wishes to act, he must request permission from the Court in order to Resign as Executor.
Resigning as Executor Before Court Appointment
A person writing a Will can nominate an individual, bank or trust company to serve as the Executor. When this person dies, the nominated executor can accept the role and petition the Court to be appointed as the Executor of the Estate, or simply refuse it by submitting a Renunciation of Nominated Executor form to the Court. The form must be signed and notarized, and once filed with the Court, the nominated executor relinquishes the right to the executorship. Before Court appointment, the role is voluntary, and thus, the Court cannot force the individual to act as Executor of the Estate.
Resigning as Executor After Court Appointment
In order to be appointed, the Executor must meet certain qualifications and swear to act in the best interest of the estate. Once appointed, the Executor must then administer the estate and distribute the remaining estate assets in accordance with the Will. Administering the estate means the Executor is accountable for collecting and preserving estate assets, pursuing and/or maintaining lawsuits, reviewing and paying valid claims against the estate, and representing other matters involving the estate. The Executor cannot simply quit and abandon these responsibilities, or he or she will be liable for any detriments to the estate.
In order to resign as Executor, the Executor must file a Petition to Court and ask for permission to resign. Only when the Court grants permission to resign is the Executor relieved from his duties and is no longer liable to the estate. The Petition would be on notice to all persons interested in the estate. If all individuals are consenting to the resignation, then waivers and consents should be included with the resignation. If the individuals are not consenting, then their names will be added to the Citation and those individuals will be served with a petition and Citation. Note that you still have to file an Accounting when you resign as executor.
Why Would I want to Resign as Executor?
Executors resign for various reasons. One common reason is due to advanced age and deteriorating health. An individual may have been appointed but the estate has taken many years to administer and the individuals physical or medical situation has changed such that they can no longer serve.
Alternatively, old Wills may have been made decades before, and the nominated executor may be on the older side. Although the individually initially believed they can act, as time went on, they became elderly or even afflicted with dementia. An eldlerly executor may not be comfortable or have access to certain technology, such as video-conference or e-mails, which is increasingly used during these times to communicate with financial institutions, government agencies, creditors or even the Court. Therefore, the individual may want to resign.
An executor may also want to resign because of increasing stress of dealing with difficult family members or distributing assets. For example, a beneficiary under a Will may have gone missing and the executor cannot fully distribute the assets. Alternatively, a family member may be objecting to certain expenses undertaken.
An Executor might also resign when faced with an estate more difficult to handle than originally anticipated. For example, the estate has multiple and drawn-out lawsuits, or many more assets than the Executor expected to collect. Under these circumstances, the Executor might resign in order for another more equipped person to qualify and handle estate matters.
How do I Petition to Resign as Executor?
In order to resign as an Executor, you will need to file a petition with the Court asking for permission to resign. The petition must include the reason for resignation, and if possible, the consent of all beneficiaries under the Will. Interested parties, such as the successor executor, must also be notified of your request to resign.
If the estate is not fully administered, such as unresolved creditors’ claims or pending lawsuits, or there are undistributed assets, the Court permits an Executor to resign with “good cause” shown. Good cause could be serious illness or old age, Executor moving outside of New York or the resignation promotes the best interest of the estate. Other factors considered are whether the resignation would negatively affect the estate, available successor executor to serve, and consent of all beneficiaries.
Do I Have to File an Accounting After Resigning?
Generally, an Executor will need to submit an informal accounting, even with the consent of all beneficiaires, to resign. The Court and interested parties may compel a formal accounting, or the Executor may volunteer a formal accounting for Court approval before resigning.
A Court approved accounting relieves the Executor from being liable to the estate. Interested parties are given a chance to object to any or all of the formal accounting. The Court will review and either grant or deny these objections. Once all objections are resolved, the Court may permit the Executor to resign. Without the judicial accounting, interested parties may be able to compel an Executor to account even after resignation.
If you or a loved one is faced with the difficulty of resigning or accounting, please feel free to contact us for help today.
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