Can One of the Heirs Be a Probate Executor?

By Stephanie Kurose, J.D.

Can One of the Heirs Be a Probate Executor?

By Stephanie Kurose, J.D.

Most states do not have any rules against allowing a person's heir to also serve as the executor during the process of administering the deceased's estate and distributing their property. It actually occurs very frequently. However, there are some practical considerations that you should take into account before appointing an executor who will also inherit property under the terms of your will.

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Probate Basics

When a person dies, their property is distributed either according to their last will and testament or, in the absence of a will, under their state's default laws of intestate succession. An executor is a person that the writer of the will, or the "testator," has appointed to do the actual collection and distribution of their property, and a probate court—typically located in the county of the testator's main residence—oversees this process.

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When a person dies with a valid will, typically they include whom they would like to appoint as executor. If there is no will or the named executor declines the job, the probate court appoints someone to serve that function.

A testator's will generally designates "beneficiaries" who will receive some or all of the testator's property. If a person dies without a will, or "intestate," most laws of intestate succession assign their closest heirs as beneficiaries who will then inherit the property.

Heirs as Executors

Most states have no statute that expressly prohibits an heir from also serving as executor. Because an executor should be someone the testator trusts, they typically want a spouse, family member, or close friend to take on this responsibility. Due to the very nature of this close relationship, this person is oftentimes also a principal beneficiary or heir who will inherit some property under the terms of the will. This is perfectly legal and quite common.

However, there are certain requirements an executor must meet. For instance, most states prohibit anyone under 18 from serving as an executor, and some may also disqualify convicted felons or anyone serving prison time.

The Role of an Executor

Taking on the role of an executor is no small task. Executors are assigned the highest level of duty of care—fiduciary. They must pay all outstanding debts, submit the necessary paperwork, sell or transfer property or investments, and collect and calculate all of the testator's assets, among other things. They can also be held personally liable if anything goes wrong. Because serving as an executor is such a big responsibility, executors are commonly compensated for their services.

Heirs as Witnesses

It is very important to note that while an heir can serve as an executor, an heir should not serve as an attesting witness to your will if you want them to inherit any of your property when you pass. While this does not invalidate your will, having an heir also serve as one of your witnesses means that they are no longer entitled to inherit any of your property.

Having an heir also serve as your executor can give you the peace of mind that your estate will be looked after and cared for after you are gone. Because it is such an enormous responsibility, you should always ask the heir first whether they are up for the task.

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