An executor is the personal representative of a person’s estate, named in their last will and testament. Whether you are creating a basic estate plan or a more involved estate plan, you will likely be naming a personal representative for your estate. This is a very important decision that should not be taken lightly. An estate planning attorney can help you look over your options for an executor and determine who can take on this responsibility.
It’s important to not think of an executor as a ceremonial position. An executor must be able to
- File for probate.
- Review and understand your will’s wishes.
- Gather important documents and assets.
- Inventory those assets.
- Review creditor claims.
- Pay valid claims with the estate.
- Distribute the assets to their designated beneficiaries.
Executors are responsible for these very important tasks, and failing to do so can lengthen the process of probate and complicate things for your heirs and your estate.
Basic Requirements for an Executor
The basic qualifications, in most states, to be an executor are that an individual:
- Is at least 18 years of age
- Has the mental, physical, and legal capacities to manage and administer a will
The probate court will also approve the individual based on these qualifications. If an executor is found to be incapable after your death, the probate court will appoint another individual to represent your estate. The court will appoint a different individual if an individual:
- Is incapacitated
- Has dementia
- Has an interfering and unmedicated mental illness
- Has a mental or communicative disability that prevents them from carrying out executor duties
An executor may be a family member, friend, or professional whom you trust. They do not need training or experience in administering wills, but it is important for your own interests that they have certain qualities.
Qualities to Look for in an Executor
When considering who may be an executor of your will, consider these factors:
Before naming someone in your will as an executor, discuss this with that person. Blindsiding a loved one after your death with the significant possibility of executing a will is rarely a good idea. Additionally, not everyone will want the responsibility. Be sure to explain the full requirements of being an executor.
An executor must be capable of handling complex duties and doing so in a timely manner. Notifications to creditors, financial institutions, governmental institutions, and other parties must be done effectively and within a certain amount of time after death. Executors must also be able to manage bills, real estate, and other important financial information.
If these duties are outside an executor’s abilities, they can work with financial and legal professionals to assist them. The executor should then be able to oversee these professionals and ensure that your wishes are being followed.
Executors have a fiduciary duty to operate in the interests of the estate and the heirs to the estate. Mismanagement, whether purposeful or accidental, can be harmful to the estate and your heirs. It may also require that the executor be replaced by the court.
An executor may commit embezzlement, waste assets, or engage in other acts of fraud. However, an executor can also be untrustworthy due to their inability to handle money properly or because they suffer from any form of addiction. If the executor does not have the personal resources to replace the assets that they mismanaged, your heirs may receive much less of the estate than you intended for them.
It is also important to consider if you want the individual to appear in person as an executor, whether other members of your family or your heirs will listen to the executor, and other unique factors.
Q: What Are the First Actions That an Executor Should Take?
A: If you are made the executor of someone’s will, you should first ensure that you know where important documents are kept and that you have access or know who has access to them. These documents include the will itself, property deeds, information on investment and bank accounts, and information on insurance policies. Many of these documents may also have a digital version that you will want access to.
When the individual who created the will dies, your initial steps as an executor include obtaining a certificate of death and securing all the important documents.
Q: Should My Spouse Be the Executor of My Will?
A: Whether your spouse is the executor of your will depends on personal preference and the wishes of your spouse. For some spouses, managing your estate after losing you may be impossible. However, it makes sense for your spouse to manage these affairs, as they have the most interest in your estate and likely the most familiarity with it. Discuss your estate plan with your attorney and your spouse to determine what fits everyone’s interests and effectively protects your loved ones.
Q: Can an Executor Be a Beneficiary?
A: Yes, an executor can also be a beneficiary. An executor must have the mental and physical capacity to manage an estate, and they should be at least 18 years old. As long as an executor meets these conditions and is found capable by the probate court, any trusted individual can be an executor. If the individual is likely to act in their own self-interest more than the other individuals listed as beneficiaries, they are not a good pick for an executor. An executor has a fiduciary duty to act in the interests of all heirs.
Q: Who Should You Choose as an Executor Besides a Family Member?
A: A trusted friend is a good choice to appoint as an executor if you feel they have the skills and responsibility to navigate and administer your estate. You can also turn to a probate administration or trust administration attorney or another attorney who you trust to handle the process of managing your estate. Financial, executor, and other professionals can also be named as your executor. When selecting professionals, it is important to find someone you can trust with the experience necessary to handle your estate.
Find the Right Executor
Choosing an executor is an important decision, and a detail-oriented and experienced attorney could help you make a more informed choice based on your estate plan and your unique needs. Contact Stange Law Firm today to see how we can help you.