For most people, a Last Will and Testament serves as their primary estate planning document. Along with making decisions regarding how you want your estate assets distributed after your death, you will also need to decide who you want to oversee the administration of your estate when you create your Will. What happens, however, if the person you appoint as your Executor is unable to serve when the time comes to probate your estate? The probate attorneys at Nash Bean Ford & Brown, LLP explain what happens if your Executor cannot serve.
Probate is the legal process that is required following the death of an individual. Probate serves several purposes, the most important of which are:
- Authenticating the Last Will and Testament of the decedent if one was left behind
- Making sure all estate assets are identified, located, valued, and eventually transferred to the new owners
- Allowing creditors of the estate to file claims against the estate
- Litigating any claims or challenges
- Ensuring that all debts of the estate, including taxes, are paid
The Role of Executor
If the decedent left behind a valid Will, the individual named as the Executor of the Will is the person who will oversee the probate of the estate, usually with the assistance of an experienced estate planning attorney. Just because you appoint someone to be your Executor, however, doesn’t mean that he/she will end up serving in that capacity. Your appointed Executor is not obligated to accept the appointed. It may also be the case that the person you appointed is unable to serve because he/she predeceases you or is incapacitated when the time comes to probate your estate. If your named Executor cannot/will not serve, and you included a secondary choice, that person can act as your Executor. If neither your primary or secondary Executor is able or willing to serve, the court will appoint an Administrator to oversee the probate of your estate. For the most part, an Administrator performs the same duties and has the same responsibilities as an Executor during the probate process.
Who Will the Court Appoint as Your Administrator?
Typically, a close relative will petition to be appointed the Administrator when one is needed. Anyone who petitions to serve as the Administrator must give written notice of the hearing on his/her petition to all heirs of the estate named in the petition. This notice must be given at least 30 days in advance of the hearing on the petition. The heirs of the estate have the opportunity to object to the appointment at the hearing.
If the probate court must appoint someone to serve as the Administrator of your estate, the Illinois Probate Act provides some guidance. In order to serve as an Administrator, an individual must be at least 18 years of age, a resident of the United States, not of unsound mind, not have been adjudicated a disabled person, and not have been convicted of a felony. In addition, there is also an order of priority regarding who has preference to serve under 755 ILCS 5/9-3 of the Probate Act, as follows:
- The surviving spouse or any person nominated by the surviving spouse.
- The legatees or any person nominated by them, with preference to legatees who are children.
- The children or any person nominated by them.
- The grandchildren or any person nominated by them.
- The parents or any person nominated by them.
- The brothers and sisters or any person nominated by them.
- The nearest kindred or any person nominated by them.
- The representative of the estate of a deceased ward.
- The Public Administrator.
- A creditor of the estate.
Contact Probate Attorneys
For additional information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about what happens if your Executor cannot serve or other estate planning issues, contact the experienced probate attorneys at Nash Bean Ford & Brown, LLP by calling 309-944-2188 to schedule your appointment today.