How to Select an Executor

An executor is a person who represents you after your death. You nominate this person to serve as your executor in your will, and this person is designated specifically to settle your estate. In sum, this person will act in your behalf as if you were still alive. A probate court has final approval on your choice, but the court generally will confirm your nomination unless compelling reasons exist to refuse your choice.

The executor whom you nominate must be willing to:

  • Locate and probate your will.
  • Inventory, collect and sell your assets when and if necessary.
  • Pay legitimate creditor claims from a designated account specifically created for that purpose.
  • Pay any taxes owed by your estate.
  • Distribute any remaining assets to your beneficiaries.

For the tasks listed above, your executor is entitled to a fee from your estate for services rendered. In many cases, a close friend or family member who has been nominated as the executor may waive the fee. This fee, however, will help mitigate any resentments for the amount of time needed to complete complex wills. Executors often endure anywhere from nine months to several years filled with will contests or tax problems.

Since your executor acts in a fiduciary capacity, he or she must exercise a high degree of caution and care at all times. In most cases, your executor will act only under court supervision, and will be subject to its control and approval. Some executors will welcome the guidance and support provided by the court.

Some states require executors to post a bond, which is later paid back to the executor from the estate (though you may be able to waive this requirement through a will provision).

With all the responsibilities listed above, you might wonder how you can find a person who would want to commit to those duties. You also might wonder how you can trust anyone to carry out your will. With these questions in mind, you might realize that your choice of an executor is very important.

Ideally, you want a person you can trust, who has a close relationship with your family and who has some understanding of tax laws and a sense of business acumen. Spouses often are named, as well as older children, siblings or parents. Outside your circle of immediate family, you might choose a friend, an attorney or a bank or trust officer. You also can name multiple executors to oversee different aspects of your will.

Sometimes, with a complex will, it might be best to choose a professional to act as your executor. In other cases, a combination of a family member and a professional might work. The family member might have a personal interest in assuring the correct settlement of your estate and the well-being of your beneficiaries. Of course, many family members might try to create a complex situation simply to aggravate other family members. In this case, it’s wise to have a professional on board to help expedite matters and to avoid family battles.

Additionally, a professional executor is unlikely to refuse to serve or to resign, as they will expect a fee for handling your affairs. When you think that the executor needs to prepare and file tax returns, obtain appraisals and make accurate accounts, you may realize that none of your family members will be capable of handling these matters. Also, it will be easier for a court to hold a professional executor financially responsible for mismanagement than it would a nonprofessional. The only thing you would lose from choosing a professional is a ‘personal touch’ to your last wishes. Sometimes, that personal touch is best expressed through letters left behind to your loved ones.

Finally, you must be aware of state laws when nominating an executor. In most states, the executor must be an adult U.S. citizen and not a convicted felon. If you decide to neglect a will or if you don’t nominate an executor or if your executor refuses or fails to serve, the probate court will step in. A probate court can appoint an administrator – a person who performs many of the same functions as an executor but with much less power and authority – and you will sacrifice any say about your final wishes.

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