Executor for will

Does your father's will nominate your brother to serve in the event you are unable or unwilling to serve? If the answer if yes (or if the will is silent with regard to a successor), your brother, if he is willing to serve as personal representative (PR), can file the petition for probate of the will with a request to be appointed PR as long as you renounce your appointment and nominate him using a separate form. There are other factors to consider when deciding who can/should serve as a PR. It would probably make sense for you and your brother to at least consult with a probate attorney before deciding how to proceed with the court. Best wishes.

I respectfully disagree with Mr. Herbst -- difference of opinion makes our profession interesting. In my experience, clients often name a child as executor for reasons that have nothing whatsoever to do with that child's ability to do the job. For instance, they will often name the oldest child simply because he/she is the oldest, without giving thought to whether that child is best qualified. If you are having doubts about your suitability for this job, tell this to your parents. They may have named you simply because they did not want to hurt your feelings. (I see this a lot in my practice!) Perhaps if they understand that you really don't want to do this they will name your sibling and you will be off the hook. By the way, congratulations on having the maturity and good sense to realize that you are not suited to this. You are to be commended for your good judgement.

Ms. Willi is a tax attorney, CPA, and Ohio-Certified Specialist in Estate Planning, Trust & Probate Law, with offices in Westerville, Ohio. She serves client families and private business owners throughout Ohio. Ms. Willi responds to Avvo questions as a public service to help educate and provide general guidance to questioners, but her responses are not legal advice and do not create an attorney-client relationship. Her posts are provided for informational purposes only and are not a substitute for advice provided by an attorney or licensed tax professional. Her phone number is 614-890-0500 and her website is www.willilaw.com.

The named Personal Representative have priority for filing Petitions for Probate of Will. Personal Representatives can and should engage counsel especially as this appears to be a relatively sizable estate and there may also be the need to file Massachusetts Estate tax returns and you can engage accountants as well, as a Personal Representative. The costs of Estate administration including your legal fees incurred in obtaining your appointment are to be reimbursed by the Estate. Frequently Wills also state that sureties are waived on the Bond ( in Massachusetts there is always a Bond even if the Will says the Bond is waived). If the Will states that, then you do not need sureties. Also, if all the other devisees and interested persons Assent to your serving as Personal Representative, you will not need to worry about sureties if the box on the Assent form is checked.

It must be confusing to get so many different answers from different lawyers. At the risk of muddying the waters even more, let me make a few points.

1. There are many requirements for what makes a good executor that have nothing to do with credit history, things like good judgment, fairness, being organized, and good with follow through.

2. Most Massachusetts wills, and most will forms I have seen, specifically waive the need for sureties on the bond. If your parents' wills have that provision, you should not have to worry about being "bonded."

3. Massachusetts law now allows an executor (which we now call a personal representative, or PR) to decline to serve, but to add someone to serve in their place. If your parents' wills have a provision allowing nomination of a replacement, you could make the decision at the time of appointment. Even without such a provision, you could decline to serve, and the next named person would step in. There is no need to make a decision now when facts may change over time.

4. It might be a good idea to be clear on why you were nominated. Was it just because you are the oldest? Or because your parents thought they were honoring you? The reality is that most people who have been asked to be a PR ended up not feeling honored, and were more likely to feel frustrated.

5. If it is not too late (and your question raises questions about whether both of your parents are still alive), it would be a good idea to start getting things organized now so that you know what assets there are, and how they are currently titled. Get clear on whether you would be using a formal or an informal probate, or whether a probate would be necessary. If both parents are alive, owning only jointly owned real estate and joint bank accounts, there might not be a probate.

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Frequently, it is not necessary to obtain a probate bond in order to be appointed in an informal administration in Massachusetts. While it might be an issue in other states, if the will waives the bond, you could be appointed with "your word as your bond." This assumes that your brother is amenable to your appointment. Typically, you are carrying out your duties as executor with the assistance of a probate attorney (paid for out of the estate, normally), so whether you are financially sophisticated or not, you can still serve. As the out-of-state attorney noted, it is a good idea in estate administration to be transparent. It may or may not be good to have a co-executor. It would be good to speak with a probate attorney before you make any decision to accept or decline your role as executor. Ther also may be reasons why a sibling might want to decline to serve, whether as primary or contingent executor, and it may be easier for one sibling than the other. Good luck!

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