Category: Probate
Tags: Administration, Estate Planning, Wills

Refusing to Serve as Executor in North Carolina

Posted on: February 17th, 2016
executor renunciationMany people might feel proud to be selected to serve as executor of a loved one’s estate. Generally, an individual chooses an executor based on strong character, trustworthiness, and integrity. Since the executor needs to take an inventory of assets, settle debts, transfer assets, and ensure relevant taxes are paid timely, selecting the right person is important. 

However, sometimes the person appointed as executor has no interest in fulfilling their duties. In some cases, the appointed person had been unaware that the decedent expected them to serve in the role due to lack of communication. In other cases, the appointed person knew the time might come when they would serve as executor, but life changes might have shifted their intentions to accept the position. An unexpected illness, career change, or other priorities might make serving as executor inconvenient. Some executors start managing probate matters only to find the time requirements and knowledge of tax and estate administration law too burdensome. North Carolina probate can be a lengthy process that could take years for some estates.

How can one refuse to serve as executor in North Carolina? The process changes depending on the time of renunciation:
  • Before the testator dies. If the individual (testator) who nominated the executor is still alive, the potential executor should discuss their concerns in advance. Declining to serve in the role in advance allows the testator time to choose an alternative executor.
  • After the testator died, but before probate is filed. In the event the testator has already died, review the will and estate documents to learn if the testator named a successor executor. If there is no successor named, the solely named individual can refuse to accept the role and the court can appoint an alternative party.
  • After the testator died and after probate has started. If probate has already started, the executor will need to formally request that the clerk of court allow their resignation from their role. As part of resignation, the executor provides a detailed accounting of all completed tasks.

Executors may receive a commission after the estate has settled. In North Carolina, an executor’s commission may not “exceed five percent upon the amounts of receipts, including the value of all personal property when received, and upon the expenditures made in accordance with law.” The fee is made at the discretion of the clerk of superior court. An executor who resigns from their role might forfeit their commission, in whole or in part.

Restrictions of Executors

North Carolina, and other states, have statutory requirements for executor eligibility. North Carolina requires executors to be individuals who are of sound mind (not incapacitated), 18 years of age or older, and who have not been convicted of a felony. (If the individual is a convicted felon, they must have been pardoned or completed their sentence.) 

Removing an Executor

Not all executors carry out their duties properly even though they are bound by law to do so. If someone acts negligently or abuses their powers as executor, they might be removed from their role by another party’s petition to the court. Learn more about removing an executor in North Carolina. Some executors might face jail time, depending on the severity of their actions.

Find Another Party to Administer the Estate

Family members or close friends are not the only options when it comes to finding an alternative executor. An attorney can handle estate administration. Whether an executor seeks an attorney for legal counsel while serving their role, or elects to pass the bulk of responsibilities to an attorney, having legal guidance during estate administration helps to ensure compliance with changing laws, accuracy of documents, and that important filing deadlines are satisfied. Individuals considering serving as executor should review the first steps of estate administration in North Carolina

By Attorney Samantha Reichle
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Comments (2)

On 09 Feb 2017 Mildred H. Gerald says:
What is the process for someone resigning due to medical issues?
On 13 Feb 2017 Greg Herman-Giddens says:
An executor’s resignation must be approved by the court, which includes a final accounting by the executor. It’s best to have a lawyer assist with the process.

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