QUESTION
Can a person decline executorship by filing out a form, having it notarized and sending it to the circuit court by certified mail?
Asked on Oct 25th, 2013 on Estate Planning - Michigan
More details to this question:
Can he also send the necessary documents and other paperwork with his resignation? Will he be charged a fee? The executor is 94 years old and cannot travel downtown. There are no liquid assets involved in the estate, only a free and clear home with a value of around $25K. I appreciate your help, thank you.
16 ANSWERS
David Thomson Egli
The person nominated by a will to act as executor doesn't have to do anything. That person is not executor until he is appointed executor and Letters Testamentary are issued to him by the Probate Court. If it becomes necessary to probate the will, someone else can petition to probate the will and act as personal representative. If may help to have a statement from the nominated person declining to act as executor of the decedent's will (doesn't have to be notarized), but even that is not necessary if the person nominated in the will doesn't contest the appointment of the person who is petitioning. In this case a probate may not even be necessary. If all the property in the estate is a home worth around $25,000, then the beneficiary of the property under the will should be looking into whether there are small estate procedures for transferring the property to the beneficiary. California has a procedure where if the real property is less than $50,000 it can be transferred to the beneficiary by recording an affidavit as provided in Probate Code Section 13200 and the person nominated as executor in the will doesn't have to do anything.
Answered on Oct 29th, 2013 at 6:34 AM
William M Stoddard
It does not have to be even notarized. A letter declining to serve is not that needed. Most people have named an alternative if one can not serve.
Answered on Oct 29th, 2013 at 6:33 AM
2 Awards
I recommend giving the declination to the second named executor. They can file it and submit their own paperwork to administer the estate. If there is no open estate, sending it to the court will not be helpful.
Answered on Oct 29th, 2013 at 1:17 AM
3 Awards
That is a complex question. It would be best for him to have a consultation possibly telephonic with an attorney to address next steps. Nevada charges $18 to lodge a Will with the clerk of the court. He cannot file his resignation until a case is opened. Sounds like a set aside would be more appropriate than a probate. This information is only intended to give general information in response to an inquiry. It does not establish an attorney client relationship. This response is only based upon the limited facts presented and is merely intended to assist you in determining if you should contact an attorney to provide you with legal advice.
Answered on Oct 29th, 2013 at 1:11 AM
Bankruptcy Attorney serving Florissant, MO
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Law Offices of Thomas Corcoran Phipps
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The probate court should have a pre-printed form for declining to serve as executor.
Answered on Oct 28th, 2013 at 1:05 AM
Edwin K. Niles
He can prepare and sign and file a declination; it doesn't need to be notarized.
Answered on Oct 25th, 2013 at 7:02 PM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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No probate will be required because the estate is so small, so no decline of executorship needed, and if there was a death, and a will in existence, he would not be required to be an executor to due to his advance age anyway.
Answered on Oct 25th, 2013 at 1:05 PM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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Easier to give the documents, and his form declining to serve, to the person who will be personal representative. Then you just file the form he signed with your petition, explaining why the person nominated in the Will is not going to serve. Also, seriously $25,000 home? You don't need to do a probate at all, a Small Estate Affidavit should suffice.
Answered on Oct 25th, 2013 at 1:04 PM
Taxation Law Attorney serving Glendale, CA
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Irsfeld, Irsfeld & Younger LLP
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No notarization is necessary or beneficial; just a waste of time and money. No certification is necessary or beneficial; just a waste of time and money. Circuit court is federal and has nothing to do with this case. If the only asset is valued at $25,000, no probate is appropriate. Will must be filed with the superior court,which will charge a small fee.
Answered on Oct 25th, 2013 at 11:08 AM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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I don't think all of that is necessary. He just needs to file a simple form declining to accept the executor-ship.
Answered on Oct 25th, 2013 at 11:05 AM
You actually do not have to do anything unless someone has filed a petition to admit the Will to probate. Just being named in the Will does not do anything unless the petition is filed.
Answered on Oct 25th, 2013 at 10:51 AM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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No, it cannot be done, this way. For starters, you need to deal with the probate court. You will want to get your form to the person who is next in line, to act as personal representative. The form you need is here: http://courts.mi.gov/Administration/SCAO/Forms/courtforms/estatestrusts/pc567.pdf The home is going to need to be probated in one form or another. By the way, it is not necessary for you to travel anywhere, to act as personal representative. If you have an attorney, the attorney can prepare and file all the paperwork, and all you would need to do is sign papers.
Answered on Oct 25th, 2013 at 8:53 AM
Probate Attorney serving New Orleans, LA
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James G. Maguire
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A person must apply to the court to qualify as the executor, and execute an oath of office. He can simply decline to do so.
Answered on Oct 25th, 2013 at 8:47 AM
Any executor can resign the position by notifying the court. If the state statutes allow it, the process you describe should be sufficient.
Answered on Oct 25th, 2013 at 8:28 AM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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All of this could be do through an attorney.
Answered on Oct 25th, 2013 at 8:15 AM
One of the beneficiaries of the estate should be able to substitute in as the personal representative. Has one already been appointed? If not, have the beneficiary be appointed. Should be able to do a small estate proceeding.
Answered on Oct 25th, 2013 at 8:00 AM