What to do about an deceased executor?

UPDATED: Oct 21, 2012

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What to do about an deceased executor?

My mother passed away from mesothilioma 5 years ago. Before her death she was involved in a class action suit. The payout from the suit continued after her death and my step father was made executor of the settlement. My stepfather passed away 6 months ago and my brother and I were named executors of his estate. We just receieved a settlement release in my step fathers name. Before we consult the attorneys involved we would like to know if the settlement issue can be changed to our names or can only a spouse be named as the executor? We have shared equally in the settlement monies, and frankly we all thought the settlement monies were done, but apparently this can continue for years to come. Do we have a legal right to become executors?

Asked on October 21, 2012 under Estate Planning, Wisconsin


Catherine Blackburn / Blackburn Law Firm

Answered 10 years ago | Contributor

It is likely that your mother received a settlement for her injuries and damages that has been paying through these years.  When she passed away, the settlement was paid to her husband as her heir.  Now that he passed away, you and your brother may be her heirs, or, your stepfather's children may be entitled to his share.  Who is entitled to the remaining settlement proceeds depends on the terms of the settlement, your mother's will (if any), your step father's will (if any), and the statute of descent and distribution in your state.

You have not said whether your mother or your stepfather left a will.  Usually, people are named executors in a will, but sometimes the terms are used incorrectly.  The executors of a will are not the people who receive distributions from the estate.  Beneficiaries receive distributions from the estate.  The beneficiaries and executors could be the same people, but they don't have to be the same people.

I suggest that you speak with the attorneys involved in your mother's case.  Ask if anyone is entitled to settlement proceeds now that your stepfather has passed away.  If they tell you "yes," then ask who is entitled to the proceeds and what steps you should take.  Those attorneys can probably lead you to the correct procedures and perhaps even refer you to a probate attorney who can help.

It is likely that you will have to open an estate. 

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 AttorneyPages.com 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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