Executors play a vital role in ensuring that your property passes according to your wishes after death. It is the job of the executor to collect your property, pay your outstanding debts and distribute your remaining assets through a court-supervised process known as probate. Although states have some basic legal requirements for executors, other qualities, such as financial responsibility and trustworthiness, are often considered most important by will makers when choosing whom to appoint for this important task.
Although states vary on the specific terminology used when referring to probate proceedings, the term executor generally applies only to the person or institution that you appoint in your will. If you die without a valid will in place or the individual you appoint does not qualify or is unwilling to serve, the probate court appoints what is known as an administrator to carry out the same duties. In most states, both executors and administrators are often referred to under the umbrella term personal representative.
The qualifications for who may serve as your executor are generally not very strict. Most states require that an individual executor be an adult, typically 18 years old, and be mentally competent. Some states also require that your executor not be a felon, and that any corporation appointed to serve be duly authorized by the state to handle probate. If the person or institution you name does not meet these qualifications, the court will deny the appointment. If an executor becomes disqualified while serving, such as being convicted of a felony, that event is grounds for removal by the court.
In some cases, an executor who qualifies to serve may be affected by other rules. For example, many states do not require that your executor be a resident of the state where probate is administered. However, it is not uncommon for state law to require a local co-executor to be appointed for receiving official correspondence from the court. Also, some states do not waive the bond requirement for out-of-state executors, and traveling back and forth may lead to additional reimbursement costs to be paid from the estate. Practical considerations such as these may indirectly limit who you choose to serve as executor of your estate.
Executors exercise significant discretion and control over your assets while probate is pending. For this reason, state law requires every executor to act in the best interests of both your estate and those entitled to receive property under your will, known as beneficiaries. This duty is referred to as the fiduciary responsibility and requires the executor to refrain self-dealing such as investing your property in his personal business. In cases where an executor has abused his role, a court may order his removal and hold him personally liable for any damages. This can cause serious delays in the probate process and potentially unrecoverable losses to the beneficiaries. Understanding the character of the person you are considering to serve as your executor before you make the appointment can help avoid mismanagement of your estate.
Read More: What Is the Executor's Responsibility in Regards to Burial Expenses?
- Legal Services of Northern Virginia: Making a Will in Virginia
- Fortenberry Legal: Louisiana Personal Representative: Serving as Succession Representative in Louisiana
- David S. Luber: Florida Probate Statutes: Section 733.504
- Law Office of Janet L. Brewer: Dealing with an Uncooperative or Dishonest Executor or Trustee
Wayne Thomas earned his J.D. from Penn State University and has been practicing law since 2008. He has experience writing about environmental topics, music and health, as well as legal issues. Since 2011, Thomas has also served as a contributing editor for the "Vermont Environmental Monitor."