Choosing an Executor is one of the most important decisions you will make when doing a Will. It isn't an easy choice, because this person will be in charge of your money and family when you are gone. An Estate Planning Lawyer will help.
They need a good mix of talents because they have to do a lot of things with financial and legal overtones, they need to be honest and moral enough to handle your money, and they need to be diplomatic enough to keep the family and your beneficiaries satisfied and happy. It's a tall order.
Sometimes, there is a simple answer, such as your wife or the primary beneficiary. Or, it might be your brother the Lawyer or your sister the Accountant.
If there isn't a clear choice, things get difficult fast. Do you want a friend to do it, or perhaps a relative that really doesn't have the skills? Or maybe your brother has the skills but the family is at odds and using him would inflame things. Or should you go the paid Executor route and hire a Bank, Trust Company or Lawyer?
Below, is a summary of all things Executor to help you understand the situation and make the right choice.
What is an Executor?
An Executor is the person named in your Will (or appointed by the Court if you didn't name one or have a Will) that will have the power to dispose of your property, wrap up all your earthly possessions, and do all the things you specify in your Will.
Typical duties include:
- Arranging your funeral
- Following the directions in your Will
- Taking control of your estate and making a list of your property
- Applying to the court for appointment of the Executor and various legal proceedings
- Distributing your property according to your wishes as set out in your Will
- Maintaining property until the estate is settled (upkeep of a house)
- Investing the estate's money
- Getting valuations on all the assets
- Paying the bills and settling all debts for the estate
- Filing the returns and paying taxes on the estate
- Accounting for all the property and money in your estate
Who Can Be an Executor of a Will?
You can choose almost anyone as the Executor of a Will. Many Wills are fairly straightforward, and there aren't a lot of issues or property. Even if the estate is complex, someone without extensive legal or financial knowledge can be selected because they can hire lawyers and accountants to handle things. It is easier if they are local so if you live in Wilton, someone in Fairfield County would be ideal.
Who Should be the Executor?
Generally, if the property is all going to one person (like your spouse or child) you want to name them as Executor. As a result the most common unpaid Executors are spouses, siblings, and children.
The most common paid Executors are friends, business associates, Banks, Trust Companies, Lawyers, and Accountants.
Friends and business associates are often good choices, but only if they are competent, honest, not conflicted, and know your beneficiaries.
One caveat is that if your estate includes business interests it is preferable not to name your business partner as your Executor due to the conflict of interest (him getting the money versus your children).
If your Will is particularly complex or you have a lot of money or property, you may feel that family members or friends do not have the necessary experience, time and skills to be your Executor. If you prefer not to have friends or family act as your Executor, it may be appropriate to consider appointing a Bank, Trust Company, lawyer, accountant or other professional as your Executor.
Professionals offer the familiarity with taxes, law, investment management, real estate, and business administration which is required to administer your estate. They are also not emotionally involved and are an impartial arbiter. However, it all comes with a cost.
The Qualifications of Your Executor
You should choose a responsible person whom you trust; however they also need to be honest, organized, and have good communication.
Honesty as a virtue speaks for itself. However, people often overlook the necessity of being organized and the ability to communicate. The distribution of the Will can become a difficult, cost a lot of money, and degrade into conflict if it is handled by someone who lacks these key qualities.
The duties of an Executor can be time-consuming. Your Executor should be someone who is able and prepared to keep careful records and to get accounting, tax, financial, investment, and legal advice for the more difficult matters
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. So if you live in Bethel CT, it is best to have someone geographically close such as Easton or Redding. Similarly, if you live in Bedford NY, someone in Lewisboro is perfect.
Should I Name Co-Executors?
Mom wanted to name me as a Co-Executor and I said “no thank you”. Why? Well, I wasn't going to get paid. It is a lot of time and effort. Moreover, if I have to coordinate everything with one of my siblings, it is even more difficult. Plus, I trust my brothers and sisters to let them handle it. Dual signatures, federal expressing stuff around, two people at the bank and lawyers office…it just gets much more complicated.
However, a number of my clients express a desire to name two of their children as the Executor of their Will. The primary reason clients tell me that they want to name multiple children as the Executor is the fact that they don't want to hurt a child's feelings. Maybe the client has two children, so if the client names both as Executor, then neither child Will feel left out.
As you can guess, I recommend against it, particularly if the co-Executors live in different states.
A good solution is to name alternate Executors, as opposed to co-Executors. Naming multiple children as alternate Executors is extremely beneficial and allows the parent to name all of their children as an Executor, accomplishing the parent's goal of not leaving any child out of the Will.
There are some instances in which co-Executors are appropriate. For instance, if you feel that an Executor needs someone to act as a check on them or you have reservations about their honesty or skills.
Should I Discuss the Executor Appointment with the Person?
Yes, discuss with the person your reasons for choosing them and how you would like things handled. Ensure they are willing to accept the appointment and discuss compensation. They should also understand where your records are kept.
Should I Name an Alternative Executor?
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 or predecease you. Therefore, it is important to name alternative Executors.
If you do not and your original Executor is not available, 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.
Does the Executor Need to Hire a Lawyer
Here in Connecticut or New York, you can handle the estate by yourself if it is very simple without much property. Otherwise, the Executor needs to hire a lawyer to assist in the handling of the estate. He/she may also have to hire an accountant to help with the accounting or file the tax returns along with other professionals for a variety of tasks.
What are the Costs?
The Executor may be paid or unpaid. The rest of the team including a lawyer, accountant and any other professionals (appraiser, valuation experts, investment manager, and property manager) will be paid.
What Happens if I Don't Choose an Executor?
If you want to control your estate and have a choice on how things are handled, you better choose an Executor and an Alternate. If not, some Judge who doesn't know you, and to whom you are just another administrative detail, will choose one for you. And trust me; it won't be the cheapest alternative either.
Connecticut and New York often have slightly different laws which require special planning so there may be different considerations if you live in Bethel CT or North Salem NY.