What are Key Considerations When Appointing an Executor for Your Estate?

What is an Executor?

An executor is a person who has been granted the responsibility of ensuring that a decedent’s assets are distributed according to the wishes of the deceased outlined in a last will and testament. The executor is also responsible for resolving any remaining debts of the deceased. This person is typically chosen by the deceased or testator. The role of an executor is one of trust, and it carries legal and financial responsibilities. This role may be filled by family members, close friends, or professionals, including lawyers or accountants.

What are the Duties of an Executor?

The executor has several primary duties and responsibilities involved in their role, such as:

• Overseeing the probate process: The executor is responsible for managing the probate process. This process involves proving the validity of any will in court and distributing assets according to the wishes of the deceased.
• Asset Management: The executor must gather and manage all of the assets to be distributed in the estate, including property, investments, and other personal belongings. This process can involve paying debts and taxes, selling assets, and distributing assets as outlined.
• Notification of beneficiaries: The executor must notify all named beneficiaries and ensure that they receive their specified inheritances.
• Debt and tax settlement: The executor is responsible for settling all outstanding debts and taxes that are owed by the estate using estate funds and filing any required death tax returns, such as inheritance and estate tax returns.
• Legal Proceedings: the executor may represent the estate in legal proceedings, such as disputes over the distribution of assets or claims against the estate.

Who is Able to Serve as an Executor?

Specific laws governing who is eligible to serve as an executor vary by region but generally abide by the following:

• Age and mental capacity: The executor must be 18 years of age or older. They must be of sound mind and mentally competent to uphold the duties of the role.
• Relationship to the deceased: Many jurisdictions have no restrictions regarding who may serve as an executor based on their relationship to the deceased. Commonly, testators will choose to have a family member, friend, or other trusted advisor act as executor.
• Residency: Some areas require that the executor be a resident of the same jurisdiction where the deceased person resided or where probate proceedings will be held. However, out-of-state executors may be appointed if they meet other requirements and are willing to act in this role.
• Capacity to fulfill duties: An appointed executor must be able to carry out all of the responsibilities of the role, which may include managing finances, communicating with beneficiaries, and navigating legal processes. Executors lacking time, knowledge, or willingness to fulfill such duties are not suitable for the role.
• Legal restrictions: Some individuals may be prohibited from serving in this capacity due to legal reasons, such as convicted felons or other individuals who have declared bankruptcy.

How is an Executor Appointed?

There are two basic ways to appoint an executor. The first way involves the testator naming the individual as an executor in the will. Upon the death of the testator, the named executor may be required to submit a petition to the probate court to be officially confirmed as the executor of the estate.

If the testator fails to appoint an executor, the court will appoint someone upon the testator’s death. The procedure for determining who is appointed varies by state; however, surviving spouses, children, and parents are all included and prioritized. When a court appoints a person to this position, the individual may be referred to as an administrator of the estate instead of an executor.

What Characteristics are Important in an Executor?

Selecting an executor is an important decision and the only person who will ensure wishes are upheld after death. The following criteria should be considered when appointing an executor:

• Trustworthiness: This is one of the most important qualities for an executor to possess because a testator needs a person who will honor their wishes, act in the best interests of beneficiaries, and handle affairs with integrity.
• Responsibility: An executor should be responsible and organized because they are involved in managing finances, communicating with beneficiaries, and overseeing legal processes.
• Availability: Managing an estate can be a time-consuming endeavor, so time and availability should be considered.
• Legal and financial knowledge: It may prove beneficial to appoint an executor with some legal or financial knowledge, especially if the estate involves complex or significant assets. 
• Family dynamics: Selecting a neutral third party or someone able to remain impartial may help to prevent conflict between beneficiaries.
• Discuss the decision: Once an executor has been considered, the decision should be discussed with that person. The person should understand the responsibilities involved and be willing to accept the role.
• Select backup executors: Naming one or two additional executors may be beneficial if the primary choice cannot fulfill the role when needed. 
• Seek legal advice: It is always a good idea to consult with a legal advisor to ensure that the appointed executor upholds the legal requirements of the jurisdiction.

Do I Need an Attorney?

Leaving the future of your loved ones in any person’s hands is difficult to consider. If you have questions regarding the appointment of an executor for your estate, call Metropolitan Law Group today at 612-448-9653 or fill out a contact form for a free consultation.