When—and How—to Withdraw from Probate

When and How to Withdraw from Probate

If you've been named the personal representative (also known as the executor or administrator) of an Ohio probate estate, you may be concerned about how best to fulfill your duties, or even whether you're able to do so. You may feel honored to have been chosen as an executor, but unsure whether you were the best choice.

You're right to feel some trepidation. As a personal representative of the estate, you could have personal liability for failure to properly carry out your duties as executor. It's natural to want to delegate those duties to someone else if you can. But should you withdraw? And if you should, how do you go about doing so?

Do I Have to Serve if I am Named as Executor in a Will?

You may feel a sense of personal obligation to the deceased to serve as executor if a loved one selected you and named you as such in their will. However, rest assured that you have no legal obligation to serve in that capacity. There is no set time by which you must refuse your appointment or renounce it if you have already accepted it. However, as a general rule, the earlier in the process you recognize that you are unable to serve, the easier it will be to get released from your duties (or prospective duties).

It's easiest to avoid serving as executor if you have not yet been formally appointed by the probate court in the Ohio county where the deceased last resided. You do not have to offer any reason for your decision not to serve. You can sign and submit to the court a form called a renunciation. You must wait until after the death of the testator (maker of the will) before renouncing your role as executor. In lieu of filing a renunciation, you can also just simply deposit the will with the probate court but not file to be appointed executor.

Out of courtesy to the family and heirs of the deceased, you may want to let them know you're unable to serve as executor as soon as you know that, even if it's too soon to file a formal renunciation.

If there is another executor named in the will, the probate court will grant letters testamentary to that executor upon application. Otherwise, the court will identify and appoint a suitable and competent person to act as administrator of the estate. This includes any interested party and perhaps an attorney acting on behalf of an heir.

Do I Have to Serve as Executor if I've Been Appointed by the Probate Court?

You can still withdraw from serving as executor of a probate estate after you've been appointed by the probate court, but you will have to petition the court for permission to withdraw. In general, reasons that you could not have foreseen before your appointment, such as serious illness or a death in your immediate family will be considered acceptable reasons for withdrawal.

If you have been appointed executor but have not completed administration of the probate estate, you will have to provide a report and accounting of any actions you've taken on behalf of the estate. This will allow the court to determine that you haven't mishandled estate property and enable a successor executor to pick up where you left off.

If your reason for wanting to withdraw is that the obligations of your role as executor are too overwhelming, withdrawal isn't your only option. You can, and should, retain an experienced Ohio probate attorney to assist and advise you. The services of an attorney are considered to be a benefit to the estate, and attorney fees come out of estate funds, not your pocket. While the duties you are facing as an executor may seem cumbersome to you, they are all in a day's work to a probate attorney. An attorney's help means that deadlines will be met and documents will prepared properly the first time around.

If you've been named as an executor in someone's will, or believe that you have been or will be, consider consulting with a probate attorney to learn just what your obligations will be and what duties they will be able to take off of your shoulders.

Categories: Probate Process