Full question:
My aunt appointed me executrix through her will, but I am unable to complete the duties because I am in Atlanta. In her will it says that if I am for any reason unable to complete the duties of the executrix, the status of executrix would fall to my grandmother. I need a form that would allow me to say legally that I cannot complete the duties and transfer them to my grandmother. Can you recommend a form and the next steps I should take?
- Category: Wills and Estates
- Subcategory: Executors and Administrators
- Date:
- State: California
Answer:
I am assuming that the will has already been admitted to probate, An appointment of an executor isn't effective until the court issues letters testamentary. The testator may appoint any executor she chooses to administer the will and her appointment of you as executor is valid. However, you will have to travel to probate court in California to probate the will and might be required to remain for a period of time in order to settle the affairs of the estate. If you feel like this might inhibit your ability to effectively serve as executor or impose too substantial a burden, you may petition the court to resign as executor and the court will appoint a new executor in your place.
The executor can file a resignation with the court and the new executor would petition for appointment as the successor. We can assist you with searching to locate forms or we can draft add forms you may need to our database. However, we cannot advise you to use one particular form over another that address the same matter. We can show you what is available. You can take a look at the forms below, which may be modified, and see if they fit your need. If they do not, let me know and we may be able to add a form for your need. You may order a form or package by phone by calling Toll Free: 1-(877) 389-0141 - 8:30-5:00 Central Time Zone Monday – Friday.
Please see the following CA statutes to determine applicability:
8400.
(a) A person has no power to administer the estate until the
person is appointed personal representative and the appointment
becomes effective. Appointment of a personal representative becomes
effective when the person appointed is issued letters.
(b) Subdivision (a) applies whether or not the person is named
executor in the decedent's will, except that a person named executor
in the decedent's will may, before the appointment is made or becomes
effective, pay funeral expenses and take necessary measures for the
maintenance and preservation of the estate.
(c) The order appointing a personal representative shall state in
capital letters on the first page of the order, in at least 12-point
type, the following: "WARNING: THIS APPOINTMENT IS NOT EFFECTIVE
UNTIL LETTERS HAVE ISSUED."
8421.
If a person is not named as executor in a will but it appears
by the terms of the will that the testator intended to commit the
execution of the will and the administration of the estate to the
person, the person is entitled to appointment as personal
representative in the same manner as if named as executor.
8422.
(a) The testator may by will confer on a person the power to
designate an executor or coexecutor, or successor executor or
coexecutor. The will may provide that the persons so designated may
serve without bond.
(b) A designation shall be in writing and filed with the court.
Unless the will provides otherwise, if there are two or more holders
of the power to designate, the designation shall be unanimous, unless
one of the holders of the power is unable or unwilling to act, in
which case the remaining holder or holders may exercise the power.
(c) Except as provided in this section, an executor does not have
authority to name a coexecutor, or a successor executor or
coexecutor.
9630.
(a) Subject to subdivisions (b), (c), and (d):
(1) Where there are two personal representatives, both must concur
to exercise a power.
(2) Where there are more than two personal representatives, a
majority must concur to exercise a power.
(b) If one of the joint personal representatives dies or is
removed or resigns, the powers and duties continue in the remaining
joint personal representatives as if they were the only personal
representatives until further appointment is made by the court.
(c) Where joint personal representatives have been appointed and
one or more are
(1) absent from the state and unable to act, or
(2)
otherwise unable to act, or
(3) legally disqualified from serving,
the court may, by order made with or without notice, authorize the
remaining joint personal representatives to act as to all matters
embraced within its order.
(d) Where there are two or more personal representatives, any of
them may:
(1) Oppose a petition made by one or more of the other personal
representatives or by any other person.
(2) Petition the court for an order requiring the personal
representatives to take a specific action for the benefit of the
estate or directing the personal representatives not to take a
specific action. If a procedure is provided by statute for a
petition to authorize the specific action by the personal
representatives, the petitioner shall file the petition under the
provision relating to that procedure. Otherwise, the petitioner
shall file the petition under Section 9611.
9631.
(a) Except as provided in subdivision (b), where there is
more than one personal representative, one personal representative is
not liable for a breach of fiduciary duty committed by another of
the personal representatives.
(b) Where there is more than one personal representative, one
personal representative is liable for a breach of fiduciary duty
committed by another of the personal representatives under any of the
following circumstances:
(1) Where the personal representative participates in a breach of
fiduciary duty committed by the other personal representative.
(2) Where the personal representative improperly delegates the
administration of the estate to the other personal representative.
(3) Where the personal representative approves, knowingly
acquiesces in, or conceals a breach of fiduciary duty committed by
the other personal representative.
(4) Where the personal representative's negligence enables the
other personal representative to commit a breach of fiduciary duty.
(5) Where the personal representative knows or has information
from which the personal representative reasonably should have known
of the breach of fiduciary duty by the other personal representative
and fails to take reasonable steps to compel the other personal
representative to redress the breach.
(c) The liability of a personal representative for a breach of
fiduciary duty committed by another of the personal representatives
that occurred before July 1, 1988, is governed by prior law and not
by this section.
8520.
A vacancy occurs in the office of a personal representative
who resigns, dies, or is removed from office under Article 6
(commencing with Section 8500), or whose authority is otherwise
terminated.
8521.
(a) Unless the will provides otherwise or the court in its
discretion orders otherwise, if a vacancy occurs in the office of
fewer than all personal representatives, the remaining personal
representatives shall complete the administration of the estate.
(b) The court, on the filing of a petition alleging that a vacancy
has occurred in the office of fewer than all personal
representatives, may order the clerk to issue appropriate amended
letters to the remaining personal representatives.
8522.
(a) If a vacancy occurs in the office of a personal
representative and there are no other personal representatives, the
court shall appoint a successor personal representative.
(b) Appointment of a successor personal representative shall be
made on petition and service of notice on interested persons in the
manner provided in Article 2 (commencing with Section 8110) of
Chapter 2, and shall be subject to the same priority as for an
original appointment of a personal representative. The personal
representative of a deceased personal representative is not, as such,
entitled to appointment as successor personal representative.
8523.
The court may make orders that are necessary to deal with the
estate of the decedent between the time a vacancy occurs in the
office of personal representative and appointment of a successor.
Those orders may include appointment of a special administrator.
8524.
(a) A successor personal representative is entitled to
demand, sue for, recover and collect all the estate of the decedent
remaining unadministered, and may prosecute to final judgment any
suit commenced by the former personal representative before the
vacancy.
(b) No notice, process, or claim given to or served on the former
personal representative need be given to or served on the successor
in order to preserve any position or right the person giving the
notice or filing the claim may thereby have obtained or preserved
with reference to the former personal representative.
(c) Except as provided in subdivision (b) of Section 8442
(authority of administrator with will annexed) or as otherwise
ordered by the court, the successor personal representative has the
powers and duties in respect to the continued administration that the
former personal representative would have had.
8525.
(a) The acts of the personal representative before a vacancy
occurs are valid to the same extent as if no vacancy had later
occurred.
(b) The liability of a personal representative whose office is
vacant, or of the surety on the bond, is not discharged, released, or
affected by the vacancy or by appointment of a successor, but
continues until settlement of the accounts of the personal
representative and delivery of all the estate of the decedent to the
successor personal representative or other person appointed by the
court to receive it. The personal representative shall render an
account of the administration within the time that the court directs.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
