Did You Choose the Right Executor?

by Kramer Levin Naftalis & Frankel LLP
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Kramer Levin Naftalis & Frankel LLP

Selecting the right executor to manage your estate is critical. Administering an estate is a difficult and sometimes frustrating process. The executor will have a lot on his or her plate, including fulfilling court requirements, handling unpaid bills, marshaling and maintaining estate property, paying taxes and distributing your assets. Therefore, it is imperative that you choose an executor who is up to the task and ready to invest the time to properly administer your estate. Here are some of the factors you will want to consider when choosing your executor. 

Is Your Executor Qualified? 

Your executor’s own personal finances should be sound. If your executor has creditor issues or has declared bankruptcy, he or she is not a good choice, as he or she would now be taking on significant additional financial responsibility when handling your (now your estate’s) assets. In addition, a court will not appoint executors over whom it has trouble obtaining jurisdiction, as well as people who have a criminal past. Therefore, a non-U.S. citizen living outside of the United States usually cannot act as the sole executor, and former felons are almost always disqualified from being appointed.  

Is Your Executor Responsible? 

Your executor does not need any special qualifications, but you should choose someone who is responsible. Your executor will need to address estate matters quickly, file tax returns in a timely manner, effectively communicate with beneficiaries and make hard decisions when necessary. Even if your will is not very complicated, you should expect your executor to pursue his or her responsibilities in the same diligent manner that he or she would for any other job.

Should Your Executor Be a Family Member or An Outsider?

Most people think first of naming a family member – especially a spouse or an adult child – as executor. The advantage of such an appointment is that your next of kin presumably understands your intentions better than anybody and can readily find the assets that need to be inventoried. However, family dynamics should be taken into consideration. If you know, for example, that your children do not get along with one another, or that your children from a prior marriage do not have a good relationship with their stepparent, an appointment of any one of those individuals may lead to family fights, or, worse, a will contest. If your family members do not get along, you may want to appoint an outside executor who is independent and has no potential conflict of interest. Of course, whereas most family members will serve as executor for free, if you opt for a third party executor, he or she will most likely take an executor’s commission.

How Old Should Your Executor Be? 

Your executor will not be able to serve if he or she is under the age of 18. There are also obvious reasons against choosing an executor who is very elderly. Your executor should generally be healthy and young enough so as to be likely to outlive you, but mature enough to handle the responsibilities and duties of an executor.

One or Two Executors? 

Testators sometimes decide to name more than one executor to serve at a time. However, you should be mindful that when multiple executors serve, majority vote controls, so that if two executors are serving, then there must be unanimous agreement on all issues. In addition, many documents require the signatures of all executors, which can cause practical problems and result in time delays, especially if the executors live in different states. Therefore, naming one executor to serve at a time may be preferable.

Check Back Every Few Years. 

The executor who seems like the perfect pick today may become a poor choice next year. There may have been a divorce or a death, or a friendship may have become estranged. You should therefore revisit your choice of executor from time to time.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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