When you draft a will, you have to name an executor/personal representative for your will, or else the State will choose one for you (a process that will likely cost attorney fees and a few months of time). The executor’s duty is to marshal all of your assets upon your death, pay your outstanding obligations as required by law, and then make a distribution of the remaining proceeds consistent with your instructions in the will.
Very little online guidance is available to provide assistance for choosing the right executor to serve for you.
Some factors that you should consider when making your choice:
#1. Likelihood of Actually Serving: Ideally, you want to choose someone as your executor who is younger than you. If you choose one of your peers to serve as an executor, he may die before you. In that event, you may have to go through the trouble of drafting a new will (though this particular issue may be mitigated by naming alternatives).
Also, you will want to present an overview of your circumstances to make sure that your selected executor will actually accept your appointment. An executor that refuses to serve has the same effect as failing to name one at all.
#2. Likelihood of Keeping Confidences: Your executor will have access to all of your real and personal property that is subject to probate administration, and perhaps more, in determining whether a particular asset is subject to the Court’s probate process. This person will know about your bank accounts, what is in your safety deposit box, and all of that type of information. At a minimum, you need to choose someone who won’t be a thief and who doesn’t have a tendency to overshare on social media.
#3. Likelihood of Being Patient: From the date that the probate of the will begins until the Order for Final Distribution, nearly every executor will remark his surprise at how long the process took. Even though estates in most jurisdictions can be settled in six months or fewer, the average probate administration takes a little over 11 months. If there are complicating factors, or a will contest, it can last for two or more years. You should choose someone with the patience to work slowly. You should choose someone who gets frustrated if a task is not completed immediately.
#4. Relationship to Beneficiaries: You should take into consideration the relationship that your intended executor has with the intended beneficiaries. At a minimum, a personal representative should not have hostile relationships with any of the beneficiaries, as this would increase the probability of a will contest or breach of fiduciary duty in the event that a beneficiary believes that he is being short-changed of some distribution. Conversely, in the event that any of the distributions require discretion between the beneficiaries, you may want to choose an executor that gets along with one of the beneficiaries better than the other (thus triggering allegations of bias).
#5. In-State Residency: Most states require that the executor live within the State in which the will is being probated. Sometimes, this requirement can be met if the executor designates an agent for service of process (i.e. updates involving the probate proceedings) in the state. Even aside from this legal requirement, you should want someone who is able to deal with local real estate agents, banks, utility companies, brokers, financial institutions, and coordinate the sale or distribution of any personal property remaining in your house.
Although this is not an exhaustive list, you are likely to do well if you choose an executor that is younger than you, honest, patient, unbiased, able to deal with your beneficiaries, and lives in the state where the probate administration will occur.
Note: This article should be read for entertainment purposes only and is not legal advice.
Originally posted 2018-10-29 01:20:45.