Houston Estate Planning and Elder Law Attorney Blog
Planning ahead and creating a will is important; however, unexpected events can often occur, causing people to reevaluate their will, as well as their Houston estate plan. One such instance is when a will’s executor passes away before the will’s creator, called a testator. This raises the question of who will execute the will. Unfortunately, this is somewhat common, and Houston residents often have questions about the next steps when this situation occurs.
What Happens If the Executor Passes Away?
The executor’s role includes distributing the will’s assets after the testator’s death. However, if the executor precedes the testator in death, there is no person to distribute the person’s assets. Therefore, the court will step in and determine who has the authority to act on the testator’s behalf.
In normal situations after a testator’s death, the probate court confirms if the executor has the authority to act on the testator’s behalf and whether they are willing and able to perform their duties. However, if the executor has passed away or is incapacitated, it makes them unable to perform their duties. In this case, the judge will name a new executor and issue “letters testamentary,” which gives the new executor the legal authority to work on the testator’s behalf.
It is critical for those creating a will to name co-executors and alternates if the named executor dies before the testator. If a testator has named co-executors in their will, the court will appoint them to serve as the new executor. When a testator has named an alternative executor – but not a co-executor – the alternate will be appointed by the court. Naming co-executors and alternates is a way for testators to have comfort in knowing if their named executor dies, there will still be someone in place to handle the affairs of the estate when they pass away.
What Should I Do If My Executor Dies?
If the executor of a will has passed away, the testator should immediately review their will with a Houston estate planning attorney and see if there are already provisions in the will that dictate what happens in this circumstance. But, in short, this is the time to update the will and name a new executor, as well as alternates. If there was already a co-executor listed, the testator should update the will to include more alternates, in case the co-executor also passes before the testator. A testator should take the time to consider who they are naming as an executor and evaluate the person’s trustworthiness, age, and time constraints. Choosing an executor, and alternates, is an important decision that testators should take the time to carefully consider.
Because matters surrounding creating and updating wills can be extremely complicated and technical, it is important those seeking to name co-executors or alternates to their will contact an experienced estate planning attorney.
Does Your Texas Will Need Updating?
If you or a loved one is considering creating a will or updating your Houston estate plan, contact the Houston estate planning attorneys at McCulloch & Miller, PLLC. The attorneys at our firm have decades of experience drafting wills for clients with a diverse set of needs and issues. We understand the importance of a comprehensive estate plan and work to ensure your wishes are met. To talk to an attorney and schedule a consultation, contact us today at 713-333-8900.