How to Select an Executor for Your Last Will and Testament

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Your executor will be the person who guides your will through the probate process after you die. The job is difficult, time-consuming, and stressful – but also extremely important. When you choose an executor for your last will and testament, it should be someone with the expertise and experience to do the job, but also someone who knows your goals and intent and who you trust to act in your best interest to make your last wishes a reality.

Part 1
Part 1 of 3:

Understanding the Role of Executor

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  1. Before you start thinking about who you might want as executor of your estate, review your state's probate law on your own or with your attorney to get a handle on the process and how your executor will do their job.
    • You don't have to read the law itself, which can be confusing – there are a number of plain-language guides to probate law that explain the process of probating a will.
    • The procedure varies among states, but generally your executor will need to file paperwork in the probate court of the county where you lived stating he will be representing your estate.
    • Your executor also must identify your creditors and notify them of your death and that he is representing your estate. [1]
    • After all necessary notifications have been sent, your executor will collect your assets and make a detailed inventory of them, requesting appraisals where necessary. [2]
    • He also must manage your estate by paying any outstanding bills or collecting any money that was owed to you, initiating collection actions or lawsuits if necessary to get that money. Essentially, your personal business is wound up the same way a business would be wound up if it dissolved. For this reason, a business-savvy executor is essential. [3]
    • Your executor also is in charge of filing estate taxes and your final income tax return. If you have an accountant or tax agent, you may want to specify that they will assist with this duty. [4]
    • Once all the bills and taxes have been paid and all notices have been sent according to state law, your executor is ready to close your estate and distribute your assets according to your will.
    • When probate gets to this point, certain personality traits may be necessary for your executor to act effectively. If you anticipate bickering relatives or if there is any animosity between individuals you've listed as heirs, you need an executor who is objective, calm, and even-tempered to help resolve those disputes. [5]
  2. Although the general probate process will be the same for every estate, a will is not a "one size fits all" document, and you may have special needs you want addressed in a particular way.
    • Above all, you want someone who is emotionally stable and financially responsible. This person should also be someone you trust – whether because you're paying them and they're bound by a professional code, or because you have a familial bond. [6]
    • If you have particularly detailed final instructions, you want to make sure you choose an executor who understands them and is capable of carrying them out.
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  3. Although your executor can always hire professionals such as lawyers or accountants to handle certain aspects of your estate, the role of executor is itself a time-consuming and difficult job that you might want to spread among two or more people. [7]
    • Most estates won't require extensive legal expertise to handle, but your executor may benefit from having a co-executor who is a tax professional or an accountant. Finding a co-executor with these skills would mean your executor wouldn't have to hire one. [8]
  4. Legally, your executor must be a U.S. citizen over the age of 18 who has not been convicted of a felony.
    • Some states require your executor to be a resident of your state as well. Others allow out-of-state executors, but only if they are close relatives of the deceased, or engage a resident to act as representative. Other states require out-of-state executors to post a surety bond. [9]
    • Beyond the legal eligibility requirements, you should look for candidates who have some financial or legal experience or expertise, and also are organized and reliable.
    • Avoid choosing someone simply because of your feelings for them. It's far more important that the person is capable of doing the job, than that you are emotionally connected or attached to him.
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Part 2
Part 2 of 3:

Evaluating Possible Candidates

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  1. A professional who doesn't stand to gain anything from your will can help avoid conflicts, especially if you have several beneficiaries who don't get along. [10]
    • Many people use an attorney or a financial planner as their executor. Doing so has many benefits, including the assurance that your estate will be managed correctly and according to the letter of the law.
    • If you have a large estate, it may be better for you to use an institutional executor such as a bank, so additional personnel can be assigned as necessary.
    • On the other hand, if you have a small estate, it's common to appoint your spouse or an adult child as your executor, since those people have a personal interest in ensuring your assets go through probate smoothly. [11]
    • However, a disinterested professional may not be as effective as a close family member such as a spouse would be in understanding your needs and your intent.
    • At the same time, a close relative is likely to be grieving and lack the concentration and emotional fortitude to handle the business of wrapping up your estate. [12]
  2. Because the probate process could last several years, you should treat the appointment of an executor as a job, and interview potential candidates. [13]
    • You don't want an executor who is going to decline the appointment and throw your estate into uncertainty. For this reason, talk to each person you've identified as a possible candidate before you appoint them, to make sure they understand and accept the responsibility. [14]
    • Outline your will and the legal requirements of your state. If you have a lawyer or an estate planner, you might have them also attend each of these meetings to answer any questions or clear up any ambiguity.
    • If you run a business, make sure your executor understands your business, and the aspects of your business that may continue after your death. [15]
  3. Especially if you're selecting someone close to you rather than hiring a professional, talk to others and get their opinion on whether that person would be up to the job.
    • Family dynamics can be extremely important when you're discussing your end-of-life issues, so you want to make sure that your close relatives have a say in your decision, especially if they will be beneficiaries of your estate. [16]
  4. After you've talked to the people you want, and heard opinions from others who know you, analyze the strengths and weaknesses of each and make your final decision.
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Part 3
Part 3 of 3:

Updating Your Will

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  1. Once you've decided who you want to appoint as your executor, you must draft an appointment clause in your will so it has legal effect.
    • If you've named successors or alternates, you should include their names as well, along with contact information for each. Doing so avoids a delay if the probate court has to appoint someone to the position.
    • Although you could simply amend your existing will by drafting a codicil, you would probably be better off just to draft a new will so everything is in one document. Since an amendment would require the same signature process as a new will, this doesn't require much additional effort on your part and can save a lot of confusion in the future. [17]
  2. Even though executors are granted certain powers by law, it's a good idea to list specifically the powers you intend your executor to have.
    • Grant your executor the power to hire a lawyer and an accountant if necessary, and make it explicit that you expect this to be done if it will smooth the process of handling your estate. This provision will take the pressure off your executor if she gets criticism for spending too much money on professionals. [18]
    • If you have any property that you don't want to be liquidated, specify that the executor has the power to hold it. Do the same with any businesses in which you participate – if you don't want the business dissolved as well, make sure you say so. [19]
    • Some states restrict the ability of executors to buy, sell, or mortgage real estate, so if you want your executor to have this power you should state that specifically in the will. [20]
  3. If you've agreed with your executor that the executor fee for your estate will be different from that imposed by the state by law, you must put this agreement in writing for it to have any effect.
    • If you draft the agreement as a contract, your executor also must sign it and it must adhere to the law in your state for valid contracts. If you want to avoid all of that, you can simply state the amount of commission the executor will be receiving in the will itself.
  4. Especially if you've chosen an outside professional rather than your spouse or your children, let them know that they won't have the responsibility of being executor of your estate. [21]
  5. Typically, you must have two witnesses and a notary when you sign your will for your signature to be valid. [22]
  6. You may forget who you named as your executor, and may later decide you no longer want that person in that role.
    • For example, suppose you name your brother-in-law as executor because he is a CPA with a law degree. He and your sister later divorce and you never hear from him again. You may decide to find a different executor.
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      Tips

      • You might want to consider naming more than one person as executor, so you can balance someone with legal or financial expertise with someone close to you such as a spouse or sibling. [23]
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      • Be sure to choose a successor executor in case your first choice dies before you or is unable to serve when the time comes. [24]
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      References

      1. ↑ http://www.investopedia.com/articles/pf/07/executor.asp
      2. ↑ http://www.americanbar.org/content/dam/aba/migrated/publiced/practical/books/wills/chapter_10.authcheckdam.pdf
      3. ↑ http://www.investopedia.com/articles/pf/07/executor.asp
      4. ↑ http://www.investopedia.com/articles/pf/07/executor.asp
      5. ↑ http://www.investopedia.com/articles/pf/07/executor.asp
      6. ↑ http://www.americanbar.org/content/dam/aba/migrated/publiced/practical/books/wills/chapter_10.authcheckdam.pdf
      7. ↑ http://www.americanbar.org/content/dam/aba/migrated/publiced/practical/books/wills/chapter_10.authcheckdam.pdf
      8. ↑ http://www.americanbar.org/content/dam/aba/migrated/publiced/practical/books/wills/chapter_10.authcheckdam.pdf
      9. ↑ http://www.americanbar.org/content/dam/aba/migrated/publiced/practical/books/wills/chapter_10.authcheckdam.pdf
      1. ↑ http://www.americanbar.org/content/dam/aba/migrated/publiced/practical/books/wills/chapter_10.authcheckdam.pdf
      2. ↑ http://www.americanbar.org/content/dam/aba/migrated/publiced/practical/books/wills/chapter_10.authcheckdam.pdf
      3. ↑ http://www.americanbar.org/content/dam/aba/migrated/publiced/practical/books/wills/chapter_10.authcheckdam.pdf
      4. ↑ http://www.americanbar.org/content/dam/aba/migrated/publiced/practical/books/wills/chapter_10.authcheckdam.pdf
      5. ↑ http://www.americanbar.org/content/dam/aba/migrated/publiced/practical/books/wills/chapter_10.authcheckdam.pdf
      6. ↑ http://www.americanbar.org/content/dam/aba/migrated/publiced/practical/books/wills/chapter_10.authcheckdam.pdf
      7. ↑ http://estate.findlaw.com/estate-administration/choosing-the-executor-faq.html
      8. ↑ http://www.nolo.com/legal-encyclopedia/why-not-make-codicil.html
      9. ↑ http://www.americanbar.org/content/dam/aba/migrated/publiced/practical/books/wills/chapter_10.authcheckdam.pdf
      10. ↑ http://www.americanbar.org/content/dam/aba/migrated/publiced/practical/books/wills/chapter_10.authcheckdam.pdf
      11. ↑ http://www.americanbar.org/content/dam/aba/migrated/publiced/practical/books/wills/chapter_10.authcheckdam.pdf
      12. ↑ http://www.nytimes.com/2011/03/03/business/retirementspecial/03EXEC.html?_r=1
      13. ↑ http://www.nolo.com/legal-encyclopedia/how-sign-your-will-the-will-signing-ceremony.html
      14. ↑ http://www.americanbar.org/content/dam/aba/migrated/publiced/practical/books/wills/chapter_10.authcheckdam.pdf
      15. ↑ http://www.americanbar.org/content/dam/aba/migrated/publiced/practical/books/wills/chapter_10.authcheckdam.pdf

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