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Changing or replacing executor for will in Massachusetts

Submitted by Brian58 on Mon, 09/27/2010 - 08:41
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I was named the executor of my brother's will but because of an illness and because she is a CPA I think my wife would do a better job. Does the law in Massachusetts allow me to appoint her as my replacement or is there a process for appointing a new executor? Thanks.

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Changing or Replacing Executor

Submitted by Peter Bernardin on Mon, 09/27/2010 - 09:43.

Your brother created a Will in which he identified his preferred Executors, and the Courts will always appoint Executors in the order named in your brother's Will. The process is designed to respect your brother’s wishes.
 
That said, your wife can be appointed “Administrator with the Will Annexed” (basically the same thing as an Executor) if you decline to serve and all the named successor executors do likewise. Your wife is not really an interest party (her marriage to you does not make her an "heir at law"), but with the assents of the heirs, she can be appointed. So bottom line, it is not really your call to make. But with some planning it can certainly happen. And the process will be a lot easier if you are the only heir at law, or all the heirs at law agree with your assessment. If you have a non-heir at law named in the Will as Executor, you will need to talk with that person or entity about your wishes. If they cooperate, then you are good to go.
 
Attorney Peter Bernardin
 

Changing or Replacing a Trustee

Submitted by glaw on Wed, 12/22/2010 - 06:49.

A trust names an executor and a successor trustee who are not family members to the deceased. The deceased only adult child would like to be named as trustee. Can both trustees be removed and if so can the current trustte make the appointment or does the court have to make the appointment?

Changing or replacing trustee

Submitted by Peter Bernardin on Wed, 12/22/2010 - 09:30.

The approach here is similar to that involved with the removal of an executor. One of the primary objectives of the Probate Court is to further the intent of the Donor (the person who created the trust). The presumption is that the trustees named in the document are suitable and appropriate, and absent some compelling reason(such as self-dealing, failure to honor the document, breach of fiduciary duties), the court will not remove a trustee. MA case law is pretty clear that a lack of love between the beneficiary and the trustee is not a sufficient reason for the court to turn its back on the Donor's clear wishes and remove a trustee. And remember that the trustees will use trust funds to fight the removal, so the beneficiary needs to proceed with caution.
 
With regard to the selection of a replacement trustee, most well drafted trusts provide for a sequence of trustees, and then a mechanism for the selection of a additional trustees. Again - the Courts want to give effect to the Donor's wishes, so generally a replacement trustee will be appointed using the names or the mechanism established in the trust.
 
My experience has been that beneficiaries can be an unhappy group. They bristle at the idea of someone holding onto "their" money. The Donor, however, put some thought and effort into crafting a trust that reflected the Donor's wishes (based on the Donor's values, goals and objectives, understanding of the family and the beneficiary, etc.), and the Court's focus is on honoring those wishes, and NOT keeping the beneficiary happy. The beneficiary absolutely has rights - lots of them. But the ability to remove a trustee at will is not one of them, unless that power is specifically provided in the trust document. Good luck.
 
Attorney Peter Bernardin
 

Update

Submitted by admin on Wed, 11/09/2011 - 12:55.

For this and other questions dealing with probate in Massachusetts, readers should be aware that Massachusetts has adopted the Uniform Probate Code.

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