Who decides the "fitness" of an executor? I have seen a will that says "if the executor shall fail to qualify", and an attorney explained that an executor must be mentally competent in order to serve (for example, not have dementia, etc.) Who determines competence, a lawyer orjjudge alone, or would a physician have to sign something that states that the executor is mentally unfit in order to unseat the executor?
Answer
The court ultimately decides the fitness of an Executor. There are additional grounds to challenge the appointment of executor, including animus towards one or more of the beneficiaries as well as a number of other grounds.
However as to competency, you would need the opinion of at least one preferably two physicians or the court may appoint its own physician to make such a determination.
You file an objection to the Executor on the grounds of competency, but you need to have a good faith belief the person is not competent mentally and/or physically to carry out his or her duties.
If you have additional questions, please feel free to contact me.
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