Can an Executor Name Another Executor in Arizona?
When a will names two co-executors, does one who cannot serve have the right to name a successor executor? Or does the remaining executor serve alone?
The Arizona Supreme Court considered this issue in Isaak v. Superior Court, 443 P. 2d 911 (1968).
Facts and Background
Mrs. Fast died in 1967. She left an estate valued at $500,000. In her will, she named two co-executors. They were Mr. Sinsheimer, an attorney practicing in New York, and the Southern Arizona Bank and Trust Company. The will named Mr. Sinsheimer’s son, W. Sinsheimer, as successor executor to Mr. Sinsheimer. Mr. Sinsheimer drafted the will a few years before Mrs. Fast died. He sent a copy to the bank, and officials told him everything was done in accordance with Arizona law.
However, after Mrs. Fast died the Bank said that Mr. Sinsheimer was not legally able to serve as a co-executor in Arizona because he was a resident of New York and Arizona law requires that executors of an Arizona estate reside in Arizona.
The bank asked the probate court to appoint it as sole executor. Mr. Sinsheimer and W. Sinsheimer petitioned the court to appoint one Mr. Isaak as a co-administrator.
The court denied the petition to appoint Mr. Isaak as co-executor. It appointed the bank as sole executor. The Arizona Supreme Court granted a petition for writ of certiorari to review the case.
Giving Effect to Mrs. Fast’s Intent
In Arizona, a will must be construed to give effect to the intent of the person making the will (i.e., the testator). Mr. Sinsheimer argued that Mrs. Fast had confidence in him and in his son.
The Court agreed that Mrs. Fast had confidence in Mr. Sinsheimer and his son. However, it did not find evidence that she had confidence in Mr. Isaak. Nor could the court rely on the assumption that Mr. Isaak would consult with Mr. Sinsheimer on a regular basis. As co-fiduciary, he would be accountable to the court, not to Mr. Sinsheimer. Nothing in the will suggested that Mrs. Fast wanted Mr. Sinsheimer to appoint an administrator should he and his son be unable to serve.
Mr. Sinsheimer’s Right to Nominate Co-Fiduciary
Mr. Sinsheimer was disqualified as serving as an administrator because he was not a resident of Arizona. The Court reviewed the issue of whether Mr. Sinsheimer had the right to nominate someone to take his place. The issue was complicated by the fact that there remained one executor qualified and competent to act.
Mr. Sinsheimer argued that Arizona cases suggest that an executor has the power to nominate a successor in Welch v. Clampitt, 134 P.2d 701 (1943). The issue, in that case, was whether the deceased left a valid will. If the will was sustained, the heirs at law would get less.
One of the heirs at law was the executrix of the contested will. The heirs at law, including the named executrix, claimed that the deceased died intestate. At the same time, the named executrix claimed the right to nominate an administrator. On appeal, the Court said that under those circumstances, the lower court correctly refused to appoint the person nominated. However, this didn’t suggest that a named executor would otherwise have had the right to nominate. Rather it was an acknowledgment that the two positions were inconsistent.
Arizona law does not suggest that an executor has the right to appoint a successor. The law provides that if one executor is absent from the state and another is ready to serve, the latter may proceed. The lower court in such a case must consider whether one executor would be sufficient. The Court found that the probate court had done so in this case.
No evidence suggested that the estate was prejudiced by the denial of Mr. Isaak’s application to be executor. He himself testified that the administration would not involve any unusual or complicated problems. And, the Court noted, costs of administration are reduced if only one executor serves.
The Court of Appeals affirmed the judgment of the trial court denying the petition of Mr. Isaak to serve as executor.
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