Deciding the person to name as the executor of your will can be difficult. After all, it's likely you've never had to make this decision before. You may not even know what the job of executor (or personal representative) requires.
This article provides some guidance on choosing an executor for your will.
What Does the Executor of a Will Do?
An executor is a person named in your will or appointed by the court if you do not have a will. They have a legal responsibility to see that the terms of the will are followed and that a deceased person's affairs are wrapped up.
Typical executor duties include:
- Maintaining property until the estate is settled (e.g., upkeep of a house)
- Collecting any outstanding debts owed to the deceased on behalf of the estate
- Collecting life insurance policies
- Paying bills for the estate
- Filing the decedent's final tax returns
- Filing the estate tax return
- Distributing property according to the will
- Making probate court appearances to report on the estate
Who Should Be My Executor?
Because most wills are straightforward, little legal or financial knowledge is required to be an executor. It's common for people to name loved ones as their executor such as:
- A spouse
- A sibling
- An adult child
- A close friend
Because the tasks of probate will require court appearances and property maintenance, it can be helpful to choose an executor who lives near the estate/home.
Also, if possible, discuss the job duties of the executor of a will with the person you wish to name as your executor. It's important that the person be willing to serve and that they understand where your bank accounts and records are kept.
Beneficiaries as Executor
It's not uncommon to select an executor from among those who will inherit property under the will. Self-interest should ensure that they will protect assets and maintain real estate and that the process is completed in a timely manner.
Friends and Family Don't Have To Be Your Executor
If you do not have surviving family members or friends, you can hire a bank, a trust company, a CPA, a corporate trustee, or a probate law firm.
Can I Name Co-Executors?
Often people worry about the responsibility of being an executor. They've never done it before and feel uncertain. You — and they — may feel more comfortable if you name a co-executor. This does not split the responsibilities or diminish their fiduciary duty. Each co-executor is fully responsible for ensuring the tasks of probate are completed. But it does provide two people to do the work.
Some people name co-executors to avoid the appearance of favoritism. For example, they may name two adult children. The co-executors will need to have a good working relationship.
Are There Any Restrictions on Who I Can Name as My Executor?
Each state's laws are different but generally, the following people cannot be named for the role of an executor:
- Children under the age of 18
- Convicted felons
Some states require that out-of-state executors also be primary beneficiaries. Review your state's probate law requirements or ask your estate planning lawyer before you choose an executor.
What Qualities Should I Consider When Choosing My Executor?
While an executor does not need specific legal or financial knowledge, it certainly helps the probate process proceed efficiently if the executor possesses the qualities of:
- Attention to detail
- Good communication skills
Why good communication? Because family dynamics are extremely important after a death in the family. An executor who can't, or won't, communicate can worsen existing tensions. This could lead to family squabbles, will contests, or other estate litigation.
Whether they should or not, your heirs may believe there is bad intent in your decision to name this or that person as the executor. It can help to discuss your choice with family members when you draft your will so they understand your reasoning.
Should I Name an Alternate Executor?
It's wise to name an alternate executor at the time you write your will. Your first choice for executor may decline the responsibility when the time comes to do the work. They may have moved away. Or they may have died. If you have named an alternate executor, that person will be asked to fulfill the role by the probate judge.
If your named executors are unable or unwilling to serve, the court will choose an executor for your estate.
Is the Executor Paid?
An executor can be paid for their services. The money to pay the executor comes from the estate itself. The executor does not need to pay the estate's expenses out of pocket. However, some states require out-of-state executors to obtain a bond to protect the estate from wrongful use of assets by the executor. Check the laws in your state and be sure that whomever you choose can cover the upfront cost of such a bond.
Many states allow a "reasonable fee"; some state statutes set a fee as a specific percentage of the estate assets. Family members do not always charge for their services as executors of an estate, but you will pay a fee to hire a professional for this service.
If the will is complex, or if significant court time is required, an executor may want to hire a probate lawyer to assist in the handling of the estate, also at the estate's expense.
Should My Executor Hire a Probate Lawyer?
The probate process is fairly routine and most people can accomplish it with little or no help from a probate attorney.
However, there may be reasons an executor wants to work with a probate lawyer, such as:
- If the executor is uncomfortable with their role and would like an attorney to provide legal advice to ensure things are done properly
- There is a lot of conflict among the heirs and the executor fears a legal challenge or probate litigation
The executor may want to consult a lawyer or an accountant if the estate:
- Is complex
- Involves a business
- Includes real estate that may have legal issues
- Could be subject to significant tax liability
Finally, executors shouldn't be afraid to ask the court for assistance. If the probate judge feels that it is necessary, they will advise the executor to get a lawyer.
Talk to Your Estate Planning Attorney About Choosing an Executor
An experienced estate planning attorney has helped many people make difficult decisions about legal documents. Whether it's choosing an executor for your will or a guardian for your children, they can help guide you to a decision with which you will feel comfortable. Contact an estate planning attorney in your area.