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Testator’s Selection of Executor

| Nov 3, 2020 | Uncategorized |

Complaints about the appointment of a proposed executor or successor in a WILL are not uncommon. Concerns of interested parties may range from competency to conflicts of interest. Relatives may be concerned about impartiality, personal animus, or ability. A creditor may be concerned about a potential conflict of interest which may jeopardize the payment of a claim.

A Probate Court has no discretion to appoint someone other than the person named in the Will. Testators are entitled to select their own executors, and those persons may not be rejected unless excluded by common law or statute. “(i)f no person has been designated in a will to be executor, or if the person designated … has died or refuses to accept or is incapable of accepting such trust, and no alternative or successor has been named the court shall admit the administration of the estate…” Conn. Gen. Stat. Sect. 45a-290(a) (2018).

Challenges to Probate Court appointment of designated fiduciaries have been strictly construed in Connecticut Courts. The cases have long held that the executor is the creature of

the testator and that the courts may not ignore the designation of the executor except in those instances provided by law.

An executor or administrator has a fiduciary duty to the estate and must not act out of self- interest or for the interests of parties other than the heirs, distributees, and creditors of the estate. An important aspect of an executor’s fiduciary responsibility is to maintain an undivided loyalty to the estate. “(One interested in an estate has the right to have its representative wholly free from conflicting personal interests.” Ramsdell v. Union Tr. Co., 202 Conn.57, 65 (1987).

In summary, as a general rule testators are entitled to select their own executors. The court may refuse to appoint a designated executor only if the chosen person is disqualified by law from serving in that capacity, if the individual is incapacitated, a minor, or a corporation whose charter does not include trust powers.

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