Choosing an Executor in Your Will
One of the most difficult decisions when preparing a Will is choosing your executor. The powers and responsibilities of an executor are defined by state law, but the typical duties of an executor, listed below, seem so burdensome that you wonder why anyone would want the job. In reality, the job is not that difficult if the Will is well drafted, for the probate attorney will handle the legal details.
Keep these duties in mind while you decide who would be best for the job.
An executor must:
- Obtain certified copies of your death certificate
- Locate Will beneficiaries
- Examine and inventory your safe deposit boxes
- Collect your mail
- Cancel credit cards and subscriptions
- Notify the Social Security Administration and other benefit plan administrators of your death
- Learn about your property, which may involve examining bank statements, deeds, insurance policies, tax returns and other records
- Get bank accounts covered by the Will released
- Place notices in newspapers so creditors can make claims
- Hire a probate attorney
Either the executor or the probate attorney must:
- File court papers to start the probate process and obtain legal authority to act as your executor;
- Manage your assets during the probate process, which usually takes six months to a year;
- Handle court-supervised probate matters, including transfer of property to your beneficiaries and making sure your final debts and taxes are paid; and
- Have final income tax forms prepared, and, if necessary, have estate tax returns for your estate prepared and filed.
Qualities Your Executor Should Have
Your executor is what is called a “fiduciary” which means he or she must act in good faith when handling your affairs. He or she cannot take advantage of his or her position or unfairly profit from financial transactions from your estate. The executor will meet the standard of a fiduciary duty if he or she does a competent, honest job.
You want your fiduciary to be both trustworthy and capable of handling the tasks. You have to have complete faith in him or her. Make sure he or she understands the responsibility of the job and is willing to accept it. This requires a discussion before you make your Will.
It is beneficial to have someone who lives in the same state as you in order to take care of paperwork and attend court appearances—indeed, some states require it. However, if the person most trustworthy and most willing lives out of state, choose that person over someone close about whom you have doubts (if your state law will allow it). Check with an estate attorney to determine if there are restrictions in your state.
It sounds a bit strange, but name someone who is healthy and likely to be around after your death. To be secure, you should definitely select at least one successor executor to serve if your first choice is unable or unwilling to do so when the time comes.
For many people, the choice is obvious—their spouse. Others select a close friend, a grown child or other close relative. If no obvious person comes to mind, make a list of your possible selections and use common sense (and this article as your guide) to make the wisest choice. |