For those who have lost someone close to them to death, it is a difficult time. Often, it can be more difficult as there is a will outlining how the deceased’s estate is to be divided, which must be satisfied.
In each case, a person has been appointed to be the executor of the will.
This blog post will address the question of whether a felon can serve as the executor of a will.
- Executor of a Will
- Duties of the Executor
- Traits of an Executor
- Supporting a Felon in Being the Executor of a Will
Executor of a Will
Anyone who creates a will names an individual as executor of that will. The person signing the will through their lawyer can name anyone they want as its executor.
In some states like New Jersey and Oregon, there is no law stating that a felon cannot be the executor. In other states like Illinois and Texas, felons are restricted completely from serving.
While there may be no statute prohibiting felons from serving in this capacity, the beneficiaries of the will have the right to protest a felon being the executor.
In those cases, the probate court will make a decision as to whether they can serve. The probate court is under state law not federal, so the rules vary between jurisdictions.
In those states not prohibiting felons from serving, probate law may disqualify them. Many states require that an executor post a bond prior to serving.
The bond is an insurance policy against wrongdoing by the executor and covers errors made by the executor.
The insurance company may not cover felons serving as the executor, which would disqualify them.
The beneficiaries can petition the court to have an executor removed but must state a reason. That reason could be having a felony conviction.
If the executor was named to that position before they committed a felony, beneficiaries could state that they know that the deceased forgot to amend their will after the conviction by saying the deceased wouldn’t have wanted a felon to serve.
In the event of being named an executor, before being appointed, felons must tell the court about their conviction before taking office.
If felons don’t, and then it is discovered that they have a felony, the judge can remove them from the role.
The court may be more willing to remove an executor if the crime was a financial one as this would create trust issues.
Duties of the Executor
There are a number of things that the executor of a will is required to do. Their actions are completed through an attorney. They must:
- Gather the deceased’s assets. These may include a house, car, bank account, and investments.
- Safeguard the property to avoid loss or damage.
- Pay debts from the assets.
- Pay taxes. This includes income tax on the estate.
- Distribute the remainder of the estate to the beneficiaries. This could involve going to probate court to make the transfer.
The executor of the typically takes six to eighteen months to complete these steps.
Traits of an Executor
For those serving as the executor, there are certain characteristics of an executor. They must be honest, cautious with the estate, and willing to put in the time it takes to complete the process.
An important trait required is to be able to communicate with the beneficiaries and any lawyers who may need to be involved.
In cases where the executor of the will is dishonest, the executor is legally liable to the beneficiaries for any losses sustained, such as through theft.
The beneficiaries have the right to ask the probate court to demand an account of the executor’s actions. The executor can be asked to provide an inventory of all steps taken and may have to include receipts for any expenses.
The executor can be removed, and the beneficiaries have the right to sue the executor for any losses sustained. The executor can be required to pay a fine or serve a sentence for theft.
This places felons in a difficult spot. Now that they have been released from prison and have committed to living an honest life, even questions of their dishonesty can jeopardize their future and result in returning to prison.
It is difficult enough finding employment with a felony conviction.
Supporting a Felon in Being the Executor of a Will
Families of a felon who is named as an executor of a will should stand by them and be supportive. Be honest with them, telling them that to serve as an executor can place them in a perilous situation.
There may be family members who are beneficiaries of the deceased who don’t want that person as the executor and would be willing to do whatever they needed to get them out of that position.
Felons need to be careful not to place themselves in a situation where their actions could be seen by others as dishonest.
It’s already a difficult time, losing someone close to them. Family should ask them to think carefully about their desire to be an executor.
It is an honor to be asked to be the executor of a will. However, they don’t need to set themselves up to risk their efforts at an honest life and become one of those felons returning to prison.
What do you think about this blog post? Are you or someone you know been in the situation of trying to be the executor of a will with a felony? What was that like for them, and how did they achieve success? Please tell us in the comments below.
2 thoughts on “Can a Felon be the Executor of a Will?”
We are struggling with this now. My friend’s Mom passed leaving her only living son as Independent Executor. She was fully aware of a DWI felony conviction and time he served in prison, 10 years ago in another state. He is an honest person. His Mother knew that or she would not have left him in charge. It’s a mess. And it’s a shame that parents who worked hard all their life and saved their money, can not have their final wishes granted.
If someone is incarcerated, how do they go about taking care of all the issues mentioned here? In Virginia!