Can we change the named executor of a will?

Anna4969 asked...

My sweet loving mother has just passed away one week ago. We are now starting to address the trust that she and my father put in place years ago. There are four surviving children, myself being one of them. The eldest son was named executor, and should he not want the position it then falls to me, then my sister and then the last brother. The problem is this that myself, my sister, and the last brother have jointly decided that we want my sister to be the executor of the will. Can you please tell me how and if we can go about getting that in place? We love my brother dearly but he lives out of state and just doesn't have the time to dedicate to this matter. Whereas my sister has handled all financial affairs for my mother since my father passed away four years ago. Any suggestions would be greatly appreciated. We live in Wisconsin.

Expert Answer

You can change the executor of the will easily, if your eldest brother agrees that he does not want the position. He can simply sign a document stating that he does not wish to become executor. Then you would sign a similar document. This would mean that your sister became executor.

If three siblings believe that your sister would be the best executor, hopefully you three will be persuasive with the oldest brother.

If your eldest brother insists on serving as executor, there is nothing you can do legally to prevent that. In theory you could bring a lawsuit against him seeking to deny him the executor's role, but that would be an exceedingly hard lawsuit to win. You would need proof that he was irresponsible and incapable of reasonably handling your mother's estate. More importantly, a lawsuit would almost surely generate family bitterness, always disastrous.

One technical matter. You refer to a trust your parents had. The person who takes over a trust after the trust creators die is called the "successor trustee." The person who handles a will is called the "executor." I think you want your sister to serve as both the successor trustee and the executor.