From Our “Ask a Question” Mailbag: “I am worried about my kids not getting along after I die. How do I pick an Executor when the most obvious choices might not be the best?”
Probate Lawyer, Peter Klenk
Getting the Right Person for the Job.
How to pick an Executor is an important question. The Executor “executes” your plan. You may have the best possible Will and Estate Plan, but if the person you put in charge of implementing your system fails to follow your terms, the entire well-thought-out plan can crumble into expensive litigation.
What is an Executor?
Let’s start simple. How can you select the “right” Executor if you don’t know what an Executor is?
Everyone dies eventually, and everyone has an estate. The estate may have only a car or one dollar, but it is still an estate. Since you can’t take things with you when you die, they pass on o someone else. The process of deciding who gets your things is Probate. In the Probate process, the Executor is the person appointed by the state to be in charge of your assets.
What does an Executor do?
While the size and complexity of estates vary, some tasks are pretty common to them all. Your Executor’s job includes gathering your assets, paying your bills and taxes, and distributing your estate to your heirs. More specifically, here is a list of typical Executor responsibilities:
Carrying out your wishes for a funeral (or no funeral).
Work well with your heirs and children.
Finish Tasks in a reasonable time.
Securing your home and other assets.
Make sure your pets, or minor children, are safe.
Filing your will with the Register or Surrogate to get the official paperwork declaring them your Executor.
Filing your final income tax return.
Selling your real estate and liquidating your other assets that do not pass “in-kind” to your heirs.
Keeping the heirs informed of the process and involving them as appropriate.
Working with the accountant, realtor, appraiser, attorney, or other professional to accomplish tasks.
Paying your bills.
Make a final distribution to your heirs.
There could be many other tasks, depending on your estate. For example, your might be in a divorce or lawsuit when you pass. Or, you may have a business that needs to be sold or shut down. If you have an LLC that will not continue, the Executor has to file the necessary paperwork with the state. So an Executor might need a specific skill set and knowledge or be able to hire a professional to assist in the process.
Who is the best fit to Serve as Your Executor?
Any person who has reached the age of 18 can be your Executor. But not every person should be your Executor.
If you have children, you may feel you must select a child as Executor. Specifically, the eldest child. Feeling like you should choose a child is a common thought. But, remember the second common task I listed above; the Executor must work well with your heirs and children. Be honest. Will your child play nicely with their siblings? You are NOT doing your children any favors by naming a child Executor if that child will cause conflict with the other heirs.
A second primary consideration is the third common task I listed above; finishing jobs in a reasonable time. An estate has no set time limit. There is nothing legally preventing an estate from being opened for decades. Think carefully about your Executor’s personality. If they tend to shy away when presented with an unfamiliar task or conflict, they are likely NOT a good candidate for being Executor. The Executor doesn’t need to know how to sell a house, file an Inheritance Tax Return, or draft a Settlement Agreement. But, they must complete these tasks in a reasonable amount of time. Your Executor is free to hire professionals to help them.
Most Executors do hire realtors, accountants, and attorneys. You do NOT want an Executor who takes on all tasks but then delays the estate because they cannot take on those tasks. The other heirs first grumble over delays. At best, they resent the Executor. At worst, it becomes necessary to hire an attorney and bring the Executor to court and have a judge either remove the Executor or order the Executor to do their job.
Naming a Family Member, Pros and Cons.
Naming a child or other family member as your Executor has its advantages. Often, a family member will work for free. Free labor reduces the estate’s overall cost. Further, a family member likely knows all the heirs (the good, bad, and ugly) so they can smooth out the process. Also, a family member may know your intentions well and be able to carry out their tasks with your unstated goals in mind.
Family members may come with problems. If you name one child, the other children may feel slighted, especially if they take a paycheck for their work. Being an Executor is a lot of work; there is nothing wrong with paying the child-Executor. But, the other children may still consider this an extra, unfair inheritance. Choosing an executor includes trying to keep the peace after you pass.
A family member being honest and kind doesn’t mean they can manage your estate. Putting someone in charge of your estate who may delay or even cause financial harm to your estate can only lead to conflict between heirs.
Naming a Co-Executors, Pros, and Cons.
One option to avoid conflicts or ill feelings from naming only one child is to include all the children. Co-Executors means that all the named Executors must act together. They may be able to delegate some tasks to one Executor, but when it comes to selling real estate or a business, all Executors participate.
Having several Executors sign a deed is more cumbersome than having only one Executor sign. Still, it isn’t that hard, especially in today’s world, where we have electronic signatures, overnight mail, and Zoom calls. Adding a few steps to the sale of your house is a small price to avoid hurt feelings between your children.
On the other side, if you have one child whose personality is contrarian, Co-Executors might not be a good idea. A sale will fail if only one child decides not to sign a deed. Your Co-Executors can have differing opinions, but in the end, they must be able to negotiate to a middle ground.
Naming a Non-Family Member as Executor, Pros, and Cons.
After considering family and friends, the correct answer to how to pick an Executor might be to hire a professional.
Trust companies, banks, and attorneys often serve as Executors. These professionals are natural fits to serve as Executor. Attorneys manage estates as part of their job. A task that might be new and odd to your family is “old hat” to a probate attorney. There will not be any delay or a learning curve if your Executor is an experienced probate lawyer.
Further, family members’ egos remain unbruised when an attorney is your Executor. Each sibling is equal; you favor no child.
As to the Cons, attorneys are paid for their time. But, if your family member was going to charge a fee, the cost is likely identical—most family members who take a fee charge the same amount as an Attorney-Executor. At our firm, we charge hourly for serving as Executor. Hourly fees are often much cheaper than taking a large percentage, which is the most common way of paying a bank or trust company for the same service.
An attorney as an executor might not know some of the subtle issues in the family, so it is a good idea that you fill them in. If you want your estate planning attorney to be your Executor, don’t be shy with the facts. If there are potential family conflicts, let us know. But, I have found that if you have family conflicts, having a neutral person in charge of the estate is an excellent first step in reducing the fight.
This blog is a short answer to the question, How to Pick an Executor? For more information about Estate Planning, follow this link to my webpage Estate Planning; Everything You Need to Know.
In Conclusion: How to Pick an Executor?
I hope you found helpful this short article responding to the question How to Pick an Executor. I have also included some links for more detailed information. Contact us if you want to know more or have an estate that needs our help. Let our Probate and Estate Planning lawyers help walk you through what can be a confusing process. Feel free to contact our office for a free consultation.
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