QUESTION

If the executor of my mothers will is my brother and he is incapacitated due to illness, how do we name a new executor? Would his POA takeover?

Asked on Jan 06th, 2021 on Estate Planning - New York
More details to this question:
Currently my brother is named as executor of my Mother's will. he has ALS and is slowly becoming incapacitated.. It's horrific for our family but our concern is that his wife who has POA for him would take over instead on my sister and myself. Should my mother change the executor to my sister to avoid having to petition the courts?
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2 ANSWERS

Estate Administration Attorney serving New York, NY at Damien Bosco, P.C.
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If it is apparent that the named executor lacks capacity or may lack the capacity to perform the duties of the executor, and the testator (the person creating the Will) is still living an has the mental capacity to update a current Will or create a new Will, then it would seem the best way to proceed is for the testator to create a new Will naming another executor. Nowadays, because of software, drafting a new Will is the preferred way rather than using a codicil to modify an existing Will because sometimes codicils are lost. If the testator does not want to update the Will and the named executor lacks capacity, upon the death of the testator, the successor executor named in the Will could offer the Will for probate and inform the court that the named executor lacks the capacity to perform the duties as the executor. If the executor did have some capacity, the executor could renounce the appointment. If there is no successor executor named in the Will, then usually another heir would offer the Will to probate and explain that the executor does not have the capacity. The court may appoint a guardian ad litem to determine if the executor has the capacity although it is unclear the court would do so. It is less likely that a person who has the Power of Attorney for the executor would be named the Executor rather than another heir. So, because of all this uncertainty, it is better for the testator to revise or create a new Will. 
Answered on Jan 07th, 2021 at 7:15 AM

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Wills Attorney serving Austin, TX
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Your mother should contact a local estate planning attorney and name a new executor and successor executor. A POA does not give the principal, your brother, the right to name someone in preference to whomever is named by your mother in her Will.
Answered on Jan 07th, 2021 at 5:47 AM

This is general information. It cannot substitute for a personal consultation with an attorney. It is not intended to be legal advice or imply an attorney-client relationship.

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