Can a executor/heir opt out of a will before it is probated

My father died in July and made me his executor without my consent. I have received deception and grief from my sister and her husband over the attempt to gather the estate to probate the will. I am now considering opting out of the executor position as well as being an heir. I don’t want anything to do with this. I am in my late 60’s and don’t need the stress. I also want to know what happens if I do this.

Asked on August 30, 2017 under Estate Planning, New Jersey


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

First of all, if you are listed as a benficiary in a Will you can "renounce" or "disclaim" your inheritance. For a disclaimer to be valid it must be in writing, be an unqualified irrevocable refusal to accept any interest n the asset, and be delivered to the executor within a certain period of time from the date of the decedent's death (this period varies from state-to-state). The Will then determines who inherits the renounced share. Secondly, as to stepping down as the executor, you can step down before formal court appointment without even giving a reason. You do this by stating, in a signed writing, that you do not want to serve as executor. Then file it in probate court after the testator's death but before you're formally appointed by the court (the exact rules for this renunciation also vary by state). If you're filling a disclaimer, notify the estate heirs and beneficiaries before submitting the document in order to give them time to find another executor. If you've already been appointed by the court, then you must file a petition for removal with it. The court will look at your reason for resigning. Acceptable reasons include ill health (yours or an an immediate family member's) and family emergencies. Also, if you were already appointed executor and are resigning, the court will require that you give a detailed account of all work performed to date. As a general rule most, you will not obtain a formal release until you provide a detailed accounting of your activities. Finally, in some states, you can resign as executor by failing to take any action after the testator dies since such failure to act is viewed by the probate court as a renunciation of your duties. At this point, you can consult directly with a local probate attorney who can more fully explain things further and/or contact the probate court.

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