Becoming an Executor & the Legal Process
An executor serves as the manager and distributor of an individual’s estate after their death. Serving as an executor is a serious responsibility that may involve significant time and attention. The job of an executor may not be an easy one, but many executors find their service rewarding. An executor who was close with the decedent may also find that the process of serving as an executor helps with closure.
Who Can Serve as an Executor?
State law dictates who may serve as an executor, but generally an executor can be any adult U.S. resident of sound mind with no felony convictions. Some states also impose restrictions on out-of-state executors. For example, some states require an out-of-state executor to post a bond, appoint an in-state agent to accept legal papers, or serve with a co-executor. Some states only allow an out-of-state executor to serve when that individual is related by blood, marriage, or adoption to the decedent. An executor is often named in a decedent’s will, but they may also be appointed by a probate court after volunteering or being called upon to serve.
If There Is No Will
If a decedent has not left a will, a probate court will appoint an executor if it finds that this is necessary. Technically, an individual appointed as the manager of a decedent’s estate outside a will is called an administrator or a personal representative, rather than an executor, although their duties are identical. State law determines how a court may choose an administrator, but generally the court will first consider a surviving spouse, followed by children, parents, siblings, grandchildren, next of kin, other beneficiaries, and finally creditors or public administrators. A court may also be able to consider an individual who is nominated by an individual entitled to serve as an administrator. A probate court judge generally has discretion over whom they ultimately appoint as an administrator.
What Is an Executor’s Job?
An executor is responsible for leading the estate through probate and possibly through property transfers happening outside probate. If the estate includes a trust, an executor must also coordinate with the trustee on matters concerning the trust. An executor is responsible for finding and organizing important documents, maintaining the estate’s assets, valuing and distributing the estate’s assets, coordinating with agencies, trustees, and beneficiaries, and working with the probate court. An executor’s job may last for only a few weeks, but an executor should be prepared to serve for months or sometimes years. While executors are generally free to hire help, such as financial experts and attorneys, an executor is still ultimately responsible for the entire probate process and will need to dedicate quality time to their duties. Therefore, an executor will best succeed if they are organized, dedicated, and a good communicator.
The Difficulty of an Executor’s Job
No executor’s job is guaranteed to be easy, but certain characteristics of the estate and the parties involved may make the job more difficult. For instance, a large or complex estate may require more time and attention from an executor. A large estate may involve estate tax issues, while a complex estate may entail more time spent finding estate documents and managing assets, like volatile investments or a business. An estate with substantial debts or a high ratio of debts to assets may also involve contentious creditor claims.
The decedent’s family or other potential beneficiaries may also determine the difficulty of an executor’s job. An executor who is the clear beneficiary of most of the decedent’s estate may have an easier time handling the estate. However, an estate may have multiple beneficiaries or even non-beneficiaries who believe that they are entitled to inherit. Beneficiaries or family members may create conflicts between each other or even with the executor. Disagreements about how the estate is being handled by the executor or disagreements about the will itself can lead to probate litigation.
Finally, an executor’s own characteristics may suggest whether serving as an executor will be manageable. A distant or out-of-state executor may face additional probate requirements or simply incur more travel expenses than a local executor. An executor may also face time management issues, depending on their other responsibilities, and may even need to take time off from work. If this is the case, an executor should explore their options for being paid for their services out of the estate. If a co-executor is appointed, the executor should consider how well they will be able to work together. Finally, an executor should consider if another individual would be more capable of serving as an executor or would be helpful as a co-executor.
Appointing a Different Executor
Someone who is named as an executor in a will may decline the job. If they decline, they should consider who will serve instead. The will may name an alternate executor who should be notified, or the court may appoint an executor. If an executor wishes to resign after they have begun probate proceedings, they will need to ask the court for permission to resign, and the court will appoint a new executor. Alternatively, the probate court may deem a potential executor ineligible to serve and appoint a different executor.
