Legal Question in Wills and Trusts in New Jersey

Competency of an executor

My stepmother was named in the will as executrix. She is 93, has Alzheimer's, dementia and her own daughter has exercised her POA because her mother was not able to handle her own financial affairs. I am named as executor in the event that my stepmother is unable. Originally my step-sibling pledged to move things forward quickly, sign over the responsibility quickly, so we can move on. Her sibling, however, has now stalled the process. We are waiting to hear if my step-mother wishes to be executrix and no one is communicating. Our attorney is taking a wait and see attitude. He has told us that we have option of going to court to have her determined to be incompetent. The days and now weeks tick by and there is no communication. What is your suggestion? Can we be proactive or is this just a waiting game. What is involved in proving someone's competence or incompetence to fulfill the role of executor. I spoke with my dad last November and he said that I would have to do it.


Asked on 9/08/07, 11:29 am

1 Answer from Attorneys
Walter LeVine Walter D. LeVine, Esq.

Re: Competency of an executor

This presumes the laws of NJ is involved, but the laws are similar in other states and procedure can be checked with the local Surrogate. Since the POA refuses to issue a Renunciation of Appointment, which would allow secondary Executor to be appointed directly, suit needs to be initiated in NJ Superior Court, Probate Part (or equivalent in another state) stating incapacity of primary named Executrix and having Court issue an Order to the Surrogate allowing Will to be probated and secondary Executor appointed. Notice must be given to primary Executrix and all interested parties (people named in Will). A POA cannot take over this responsibility regardless of language of POA, as the Will controls who acts.

Costs and fees for this proceeding become reimbursed by the estate once new Executor is appointed.

Read more
Answered on 9/08/07, 11:58 am


Related Questions & Answers

More Probate, Trusts, Wills & Estates questions and answers in New Jersey