Can a contingentexecutortake over the duties ofthe primary executor if the primary executor has not declined their duties?

Sister 1 is listed as executor in my fathers Will. Sister 2 is listed as a co-executor if sister 1 can’t or doesn’t want to be the executor. Sister 1 is an accountant living in TX. Sister 2 works for the law firm handling the paperwork and lives in IL where dad lived. Sister 2 submitted the documents to the courthouse however they list both sister1 and sister 2 jointly as co-executors. I would like to have it corrected as my father wanted, but what are the pros and cons of both?Ssister 1 also did not sign the court documents. Sister 2 signed and them for her and notarized them.

Asked on March 10, 2011 under Estate Planning, Illinois


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

This is a VERY touchy situation and sister 2 needs to be VERY careful as to what she is doing.  Now, are they listed as co-executors or is sister to a "contingent" executor?  They are very different and the guidance here would be different.  Co-executors, depending on state law, can act independently from each other as long as it is in the best interest if the estate.  However, at no time can anyone ever sign documents for another and notarize them as well. A contingent executor acts only when the execurot can not or chooses not to act, i.e., steps down or declined to be executor.  If you are the Executor as your Father wished then you need to step up and take control.  You need to think about switching law firms so that your sister does not have access to the documentation in any way.  And you need to do this ASAP.  Good luck. 

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