What Happens If Your Chosen Executor or Trustee Can’t Serve?
You’ve spent time in careful estate planning. From choosing who will handle your affairs, managing your assets, to making sure everything goes exactly as you intended.
But what if the person you’ve trusted with that responsibility can’t step into the role when the time comes?
It’s a question many New Yorkers overlook until it’s too late. Maybe your chosen executor has moved out of state, or your trustee is no longer able to serve, or life has simply changed since you first drafted your documents.
Whatever the reason, understanding what happens next and how to plan for it can save your loved ones from unnecessary stress and court delays.
Let’s break down what happens under New York law when your executor or trustee cannot serve. Learn also how significant smart estate planning steps can keep your estate running smoothly no matter what.
Executor vs Trustee distinction
An executor is appointed under a Last Will and Testament and derives authority from the Surrogate’s Court upon the issuance of Letters Testamentary. The executor’s duties include collecting estate assets, paying debts and taxes, and distributing property in accordance with the will and applicable statutes, including the Estates, Powers and Trusts Law (EPTL) and the Surrogate’s Court Procedure Act (SCPA).
A trustee, by contrast, derives authority from the trust instrument itself. Trustees manage trust assets for the benefit of designated beneficiaries, subject to fiduciary obligations imposed by EPTL Article 7 and the New York Prudent Investor Act (EPTL §11-2.3).
Unlike executors, trustees generally operate without direct court supervision unless judicial intervention is sought.
To guide you in distinguishing these roles for your estate, have a talk with our elder law attorneys, experienced in handling estate probate and administration.
Backup options
Selecting an executor or trustee is one of the most important decisions in estate planning. This individual or institution is responsible for carrying out the terms of a will or trust, managing assets, paying debts, and distributing property to beneficiaries.
Because the role carries significant responsibility, it’s crucial to choose someone trustworthy, organized, and capable of handling financial and legal matters.
However, even the most carefully chosen executor or trustee may later be unable or unwilling to serve. Life circumstances such as illness, relocation, or personal obligations can make it impossible for them to fulfill their duties.
Planning ahead for this possibility ensures that the estate or trust administration continues smoothly without unnecessary delays or court involvement. Even with careful planning, circumstances can change, and the person selected as executor or trustee may be unable or unwilling to serve.
To ensure the estate or trust is managed smoothly, it’s essential to plan for backup options.
Name an Alternate Executor or Trustee: Designate one or more successors in the will or trust document to step in if the primary choice cannot serve.
Appoint Co-Executors or Co-Trustees: Having two individuals share responsibilities can provide continuity if one becomes unavailable.
Allow for Professional or Corporate Trustees: Including a clause that permits the appointment of a bank, trust company, or attorney ensures professional management if no individual is able to serve.
Grant Appointment Powers: Authorize a trusted family member or beneficiary to appoint a replacement if needed, maintaining flexibility over time.
Including these backup measures helps prevent delays, disputes, and court intervention, ensuring that the estate or trust administration proceeds according to the original intentions.
Court involvement
If no successor is named, or if all nominated individuals are unable to serve, the Surrogate’s Court assumes jurisdiction to appoint a substitute.
Estates
Under Surrogate’s Court Procedure Act (SPCA), particularly in §1418, the court may issue Letters of Administration c.t.a. (“cum testamento annexo”) to an eligible person, typically a residuary beneficiary or other interested party. The administrator c.t.a. possesses the same powers and duties as the original executor, subject to court oversight.
Trusts
For trusts, Estates’s Powers, and Trusts Law (EPTL), particularly in §7-2.6, it authorizes the court to remove a trustee and appoint a successor when necessary to preserve the trust’s purpose or protect beneficiaries. The court’s discretion is guided by the settlor’s intent and the equitable principle of maintaining continuity in trust administration.
Practical guidance for families
To mitigate the risk of fiduciary vacancies:
Include successor designations in all testamentary and trust instruments.
Review fiduciary appointments periodically, particularly after major life events or changes in domicile.
Consider professional fiduciaries, such as trust companies or attorneys, when family members may lack capacity or neutrality.
Incorporate flexibility by authorizing beneficiaries or a trust protector to appoint replacements if necessary.
Ensure compliance with New York qualification requirements, especially for nonresident fiduciaries under SCPA §707(1)(c).
These measures reduce the likelihood of court intervention and preserve administrative efficiency. Professional advice can help create a plan that protects both assets and loved ones with confidence.
For personalized guidance on choosing executors, trustees, and backup options, contact the Moskowitz Legal Group today to schedule a consultation with our elder law attorneys in New York.
