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graycradm · Mar 26, 2012, 12:02 PM

My mom named my uncle (her brother who's in his mid 80s) as first executor in her will. She had dimentia when the will was drafted. I am listed as executor if he cannot fulfill his duties. My sister and I have taken care of all of her belongings and finances prior and post her death. We are listed as heirs in her will, not my uncle. We believe he is/has not fulfilled his duties as executor and we want to have him removed as executor so I can bring the wishes stated in her will to closure. How can I do that?

ebaines · Mar 26, 2012, 12:16 PM

You'll have to file a petitiion in the county court where your mother resided to have it over-turned. However, since your mother's express wishes were that your uncle be executor you have an uphill fight unless you can show that he is being negligent. The fact that you are an heir is not germane. I suggest you consult with an attorney about this.

A better course might be to talk to your uncle and see if he is voluntarily willing to relinquish being executor to the alternate named in the will.

AK lawyer · Mar 26, 2012, 04:37 PM

Originally Posted by graycradm

... She had dimentia when the will was drafted. ...

If she was mentally incompetent at that time, the will would be invalid. So it doesn't matter what it says. You would apply to become personal representative as though there were no will at all (or a prior will, if any, would control).

Originally Posted by graycradm

... My sister and I have taken care of all of her belongings and finances prior and post her death. We are listed as heirs in her will, not my uncle. We believe he is/has not fulfilled his duties as executor and we want to have him removed as executor so I can bring the wishes stated in her will to closure. How can I do that?

How did the two of you "take care of" things if neither of you is the personal representative? Has your uncle applied to have the will admitted to probate?

Fr_Chuck · Mar 26, 2012, 05:01 PM

You could not "legally" take care of anything after their death since you are not the executor. You can petition the court to have the will thrown out if you can prove she was not of sound mind. Or you can petition the court to replace the current executor

ScottGem · Mar 26, 2012, 05:12 PM

The first question you need to answer is whether the will has been submitted for probate. Until it is there is no executor.

If it has been then you have three options:
1) Ask your uncle to relinquish his duties
2) Petition the court to have you replace your uncle on the grounds that he is not able to perform the duties (you will have to provide proof he's not)
3) Overturn the will on the grounds that your mother was not of sound mind (again you will need to provide proof) also if you overturn, if there was a previous will that will take precedence or she will be considered intestate and local laws of inheritance will take over.