Is it true that I can’t be the excutor of my stepfather’s Trust?

UPDATED: Sep 30, 2022

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Is it true that I can’t be the excutor of my stepfather’s Trust?

My stepfather selected me, the eldest of three stepchildren, to be the executor of his estate. His wife/my biologic mother had preceded him in death, and he has no other living blood relatives. The attorney we are working with to move the estate through probate has informed us that state law doesn’t allow a stepchild to be an executor, and that while many judges will make an exception to this rule, that the judge will not. He has told us that we need to find another blood relative of my deceased stepfather of which there are none or any state resident. He has also offered to serve as our representative if we would prefer that option. Am I correct in thinking that by agreeing to this I would have given control of the trust to the attorney? And if so, should I have concerns for his ability to not follow the directives of my stepfather’s Will?

Asked on October 21, 2016 under Estate Planning, Florida


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

If your stepfather named you to be his executor in a valid will, you are his executor: a person can name *anyone* they like as executor (in honor of this election season, someone with a twisted sense of humor could name Donald Trump and Hillary Clinton as co-executors, for example), regardless of relation.
If you were not named in a will as executor--and other expressions of his wishes, whether oral, email, text, letter, etc. don't count; only a will can name an executor--the the court will appoint a personal represenentative. (By the way: FL uses the term "personal representative.") That will typically be the closest living blood relation, but does *not* have to be state resident: my own father just died in Florida without a will and the court appointed me his personal represenative even though I live in NJ.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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