Is it the attorney’s duty to ensure that an executor/co-executor actually exists, is capable of handling the duties of an executor and is still alive?

When a person names an executor or co-executors in their Will, is there any legal requirement that said named executors or co-executors be alive and also be capable of performing such duties at the time of signing? A living daughter was removed as co-executor for no known reason and replaced with a deceased father who pre-deceased the testatrix by 7 months. Is it legal to name a deceased person as executor /co-executor?

Asked on November 28, 2011 under Estate Planning, New Jersey

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

No, a deceased person may not be an executor.

If the attorney knew that the person was deceased, then it would be malpractice to draft a will naming them executor, since then the lawyer would be knowingly creating a legally flawed document. However, the laywer has no duty to investigate the situation, or determine that the named executor is real, alive, mentally compentent, etc. The lawyer may rely on what the testator tells him or her...so only if the attorney happened to know that the executor was deceased would there be a potential malpractice claim.


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