A person may name his adult child or other trusted relative or friend as executor in his will. He may also name devisees, or individuals who will inherit his property at death, and beneficiaries, or those who will benefit from any testamentary trust established by his will. An executor may also be a devisee or beneficiary.
An executor, often referred to as a personal representative, is often chosen by the maker, or testator, of the will. This person is frequently the eldest or only child of the deceased, and is officially appointed by the court as executor to fulfill the will’s terms. An executor’s powers to act are given by the issuance of a document called letters testamentary by the court after filing of the will for probate. Occasionally, someone who does not inherit under the will may be named to serve as executor. A corporate executor, such as a financial trust company, may also be named as executor if the estate is large and complex.
A devisee is a person directly named in the will to inherit the property of the decedent. A devisee is often a relative of the deceased. If there is only one devisee who also happens to be the only child of the deceased as well as the executor, then he will be charged with the duty of transferring property out of the estate to himself.
A will may establish a testamentary trust by its provisions. If the testamentary trust is a named devisee under the will, then property passes from the estate to the trust. The executor is then charged with the duty of transferring property into the trust to be managed by a trustee named in the will.
Although an executor may be both a devisee under the will and a direct beneficiary of a testamentary trust, by law she has a fiduciary duty to see that the terms of the will are fulfilled. She does not have free reign to disburse the property according to her own desires if they are in violation of the will’s terms. In the event the executor violates this fiduciary duty, the remaining heirs or devisees under the will may petition the court to have her removed as executor, and she could face strict penalties under state law.