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What if there's an option to remove first executor on the basis of defect, as in an inability to make good decisions.
How would one approach the "able" in a Will that requires first born to be able, but where first born may not be entirely able due to a combination of medical surgical and personal reasons?
Does it mean getting another lawyer? That's always an option, but lawyers have a bad habit of sizing up the total value and billing for exactly that amount just prior to making a "compromise".
What's the best approach to unseat first executor on the basis of health reasons. What is the legal approach?
It isn't really the type of thread for this forum, but I'm not sure where it would otherwise go - personal finance?
The answer is that any change like this will have to go through probate court. In legal matters, only a fool is his own lawyer. The exact legal argument would best be determined by a lawyer familiar with case law and the judge.
Thank you to everyone who has patiently not moved this question. I get it now. If someone is "unable" to execute the Will, the second is aware and no lawyer is needed.
In light of obvious tax and probate requirements, someone needs to act. First in line has surgery and second in line ... should act, right, regardless of anything. If the first named is unable, no lawyer or law is required, per se, in fact, the second is required to act.
Sheesh.
I have looked at the grief and mourning discussion thread four months because my mom suffered her first mini-stroke at the end of April. At that time, I started grieving because that was the first loss of her as I knew her.
I am so tremendously sad today because she passed
I am asking for opinions given that I am second, and I don't want to offend first, but ...
And of course, I know that I'm asking a public forum, but I've been here long enough to trust some.
I'm sorry about the loss of your mom. My mom, too, suffered many small strokes and a big one three months before she died, followed by smaller ones. They all took away smaller or larger parts of her personality and capabilities. When she finally died, it really felt like a blessing because she really wasn't there any more. Seeing someone you love "disappear" before your eyes is hard, to say the least.
I was my mom's executor (also power of attorney when she was living.) She had no property when she died, so we didn't go through probate. But you are right that if I had been incapacitated for some reason, my sister, who was the second, would have taken over. Seems like that would have been proper and justified. When my husband died, I had to go through probate because there was ownership of a house, insurance issues, and I knew I would be selling the house at some point, and didn't want any complications. If I had been unable to be the executor for some reason, my son, who was second, could have done it, but that would have had to be established in probate, by a judge.
These things do depend on the state you live in and their laws about probate, wills and inheritance. Where I am now, I have a trust that would eliminate the need for probate. Since the second executor is listed in the trust, I imagine that would come into effect if the first couldn't do it. I would have my trust lawyer look at it, if that happened (although in this scenario, I would be dead, but you get the idea.) I don't think anyone on this forum can give you definitive legal advice because the laws are different in different states, and we don't really know the situation (and it wouldn't be ethical to give such advice.) But good luck with this, and I wish you healing and peace on the loss of your mom.
You don't mention if the surgery is life threatening or disabling or if that person is mentally able but yet physically unable. Jumping in with both feet could be imprudent. If you are on friendly terms with the executor and the situation doesn't preclude communication, then a discussion and agreement on how to begin to handle the estate could go a long way to prevent hurt feelings or worse. I have a concern that there may be more to this than meets the eye, so sans further info would prefer not to comment further.
You don't mention if the surgery is life threatening or disabling or if that person is mentally able but yet physically unable. Jumping in with both feet could be imprudent. If you are on friendly terms with the executor and the situation doesn't preclude communication, then a discussion and agreement on how to begin to handle the estate could go a long way to prevent hurt feelings or worse. I have a concern that there may be more to this than meets the eye, so sans further info would prefer not to comment further.
It's a bit of both. He was in the hospital four times in ten days and doctors wanted to operate immediately, but that was postponed by him because of the pending death. Doctors don't usually want to operate immediately unless it's urgent. We'll have to wait for outcome of the surgery to know the prognosis. Recovery time is six weeks with major restrictions on activity, and another six months of gradually recovering completely if the prognosis is good. Regarding mentally able, yes and no. Willing yes, ability is heavily influenced by state of mind which, at this time, seems rote - if that makes sense. I will help with the first step, which is filing the Will, and leave the rest for now. I agree that discussion and agreement is most important, and that is where we're at today. Thanks for your input.
OK, that gives more info. I can understand doctors not wanting to operate where a death of a close person could create a depressed state in the patient, and have recovery hampered by the possibility of fugue due to circumstances.
It appears that in a best case scenario you will not only be working as de-facto executor, but have a part in the recovery and comfort of the executor.
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