When dealing with end of life issues, people often get overwhelmed. Whether you're deciding who should be your executor, or if you've been named the executor of a will, it doesn't need to be complex or stressful. Here are some simple guidelines.
An executor is someone named in your will, or appointed by the court, who is given the legal responsibility to take care of any remaining financial obligations. Typical duties include:
The money to perform these duties comes from the estate itself. If the will is complex, or if significant court time is required, an executor may want to hire a lawyer to assist in the handling of the estate, also at the estate's expense.
Typically, you can choose almost anyone as the executor of a will (but see below for restrictions). Most wills are fairly straightforward, and no legal or financial knowledge is typically required. As a result the most common executors are:
The key qualities that an executor needs are honesty, organization and communication. Honesty as a virtue speaks for itself. People often overlook, however, the necessity of being organized and the ability to communicate. The distribution of the will can become a mess if it is handled by someone who simply lacks these key qualities.
In addition to honesty, organization and communication, other important considerations should also play into who you choose as your executor. For instance, family dynamics are extremely important in end of life issues. Who you choose can lead to in-family squabbling and will contests, so carefully consider the impact of who you choose. Whether they should or not, people read into your decisions and assume you are making judgments regarding their worthiness (e.g., naming the youngest child as the executor of a will because he or she is a lawyer or accountant may still be construed as favoritism).
Another basic consideration is the executor's location. Things such as court appearances, checking mail and property maintenance can be considerably more difficult if the executor does not live near where the majority of the assets are located.
Typically, it is often helpful to select someone who stands to inherit a significant amount of property under the will. This is helpful because self-interest can help ensure that the property is well maintained, and is handled in a timely manner.
If possible during your lifetime, discuss being the executor of a will with the person you wish to name in your will. It is important that the person be willing to serve as the executor and for that person to understand where your records are kept.
Be aware that whoever you named as your executor, even if they agreed to be your executor during life, may decline the responsibility when it is time. For this reason alone, it is helpful to name alternative executors. If you do not and your original executor declines the responsibility, the court will choose an executor for you. The less decision making you leave to a court the better, so name alternative executors in your will.
Generally anyone can be your executor. The major exceptions to this are:
Each state's laws are different, so always look into your state's laws before naming an executor.
Many wills are fairly routine and simple, and require no specialized knowledge. Even if you go through probate court, the paperwork required does not require a legal degree. On the other hand, if there are disputes, complex property issues, significant tax liability, etc., an executor should seriously consider getting professional help in the form of a lawyer, or depending on the issue, an accountant. Finally, executors shouldn't be afraid to ask the court for assistance; if the judge feels that it is necessary, he or she will almost assuredly advise you to get a lawyer.
You've thought long and hard about what financial decisions you want to make, but aren't sure how to put your wishes into a legally binding plan. Here's the good news. You don't have to fuss and fret about this on your own. Sit back, relax, and let a legal expert guide the way. Start the process by contacting a skilled estate planning attorney in your area.
