Throughout my experience, I have had many clients spend a great deal of time deciding who should serve as the executor of their will or the successor trustee of their living trust. However, one question that is often overlooked is what happens if that person is no longer willing or able to serve when the time comes. Life circumstances change, and the individual you selected years ago may have moved away, become ill, passed away, or simply decided they no longer wish to accept the responsibility.

Fortunately, California law provides options, but proper planning can make the transition much smoother.

WHY AN EXECUTOR OR TRUSTEE MAY BE UNABLE TO SERVE

There are many reasons why your chosen fiduciary may not ultimately serve in the role. Some of the most common include:

• Death before you
• Serious illness or incapacity
• Relocation to another state or country
• Personal or family obligations
• Declining the appointment

Serving as an executor or trustee carries significant legal responsibilities, and not everyone is willing or able to accept those duties.

WHAT HAPPENS IF AN EXECUTOR DECLINES TO SERVE?

If the executor named in your will cannot serve, the probate court will generally appoint the alternate executor named in the will. If no alternate has been designated, the court may appoint another qualified individual according to California law.

While this process is generally manageable, it can result in additional delays and expenses during probate.

WHAT HAPPENS IF A SUCCESSOR TRUSTEE CANNOT SERVE?

Living trusts often name one or more successor trustees to take over when necessary. If the first successor trustee is unable or unwilling to serve, the next named successor typically assumes the role.

However, if no successor trustees remain, it may become necessary for a court to appoint a trustee, depending on the language of the trust and the circumstances involved.

WHY NAMING MULTIPLE SUCCESSOR FIDUCIARIES IS IMPORTANT

One of the simplest ways to avoid future problems is to name more than one alternate executor or successor trustee. Doing so provides flexibility if circumstances change years after your estate plan is created.

Reviewing these appointments periodically is equally important, especially after major life events such as marriages, divorces, deaths, or relocations.

REVIEW YOUR ESTATE PLAN REGULARLY

Many people create an estate plan and place it in a safe location without reviewing it for years. During that time, relationships change, family members age, and trusted individuals may no longer be the best choice.

Regular reviews help ensure that the people named in your estate planning documents are still willing and able to carry out your wishes.

FINAL THOUGHTS

Choosing an executor or successor trustee is one of the most important decisions you make when creating an estate plan. Equally important is planning for the possibility that your first choice may not be available when needed.

By naming alternate fiduciaries and reviewing your estate plan regularly, you can help avoid unnecessary delays and ensure that your estate is administered according to your wishes.

If it has been several years since you reviewed your estate plan, now may be a good time to confirm that the individuals you have selected are still the right people to serve.

LEGAL DISCLAIMER

This article is intended for general informational purposes only. Any legal analysis or other content should not be construed as legal or professional advice or as a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of this information. If you require legal or professional advice, please contact an attorney or other suitable professional advisor. The choice of an attorney or other professional is an important decision and should not be based solely upon advertisements and blog postings.