Executors in Wills

by Kristin Shea
Make sure the person who you plan to name as executor in your will understands the responsibilities involved.

Make sure the person who you plan to name as executor in your will understands the responsibilities involved.

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The executor is the person appointed by the court to administer an estate. Usually the court appoints the executor named in the will, unless that person is disqualified. If you do not name an executor in your will, the court will decide whom to appoint. Avoid the court making this important decision by choosing a qualified executor and alternative, thoroughly discussing the executor’s substantial responsibilities with the people you plan to name and making sure they are comfortable accepting the job.

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Who to Name as Executor

The appropriate executor depends upon the circumstances of each individual estate. Often the executor does not require any specialized legal or financial expertise to perform the executor duties. If legal or financial assistance is required, the executor can exercise the option of retaining a lawyer, accountant, financial expert or other professional for the estate. Essential qualities of an executor include maturity, trustworthiness and good organizational skills. Consider whether your choice for executor will be persistent and patient when dealing with the bureaucracies and red tape of collecting reimbursement from insurance companies, communicating with government agencies, paying bills and handling substantial paperwork. The executor will have to make court appearances, collect and maintain assets. So consider the executor’s proximity to the probate court and the estate's assets.

Legal Requirements for an Executor

Generally, the court will appoint the executor designated in the will. The court will disqualify an executor who doesn’t meet legal requirements, however. Felons and minors cannot be executors. In addition, the executor must be a U.S. citizen. Some states place additional requirements on out-of-state executors such as requiring a nonresident to post a bond or to have a beneficiary interest in the estate.

Choosing an Alternate Executor

If your executor dies, refuses the position or is otherwise disqualified by the court, the court will choose an executor. To avoid this possibility, include an alternative executor in your will. The court will generally appoint the alternative executor if the principal executor cannot or is unwilling to perform the executor duties.

Duties of an Executor

The executor plays an essential role in wrapping up the affairs of your estate and distributing assets. Some duties of the executor include initiating probate when appropriate, collecting and inventorying the estate’s assets, paying the estate’s debts and taxes, maintaining and protecting the estate’s assets, submitting government forms, communicating with beneficiaries and distributing the estate’s property to beneficiaries.

Compensation to an Executor

The executor accepts a substantial workload and personal responsibility. Executors are therefore entitled to payment for their services. Each state establishes compensation for executors statutorily. You can also include compensation provisions in your will. Most states do not permit an attorney executor to accept both attorney’s fees and an executor commission. Many attorneys therefore waive their executor commission when acting as executor. In some cases that require a lawyer’s expertise, choosing an executor who is an attorney can avoid the additional cost of executor compensation. In other cases, such as for smaller estates, you may consider choosing a friend or family member who agrees to waive the executor’s fee.

Removal of an Executor

A party who believes the executor is not adequately performing the duties required can petition the court for the executor’s removal. The person requesting the executor’s removal must have a stake in the estate and present evidence that supports the assertions of non-performance.