After a relative or friend dies, you may be surprised to learn that you were chosen to be the executor of their estate. You might feel pleased to have a chance to do a final and important favor for someone you loved. On the other hand, you might feel you have little choice so that you have to accept the job. In fact, you do have a choice. Even if you feel an obligation to the deceased person -- who has both honored and burdened you by choosing you for the role of executor -- you can decline the job and let it pass to someone else. The information in this article can help you make your decision. (For a rundown of the tasks you'll likely face as executor, see Nolo's Checklist for Executors.)
Legal Restrictions on Who Can Serve as Executor
Every state has laws about who may serve as an executor of an estate that's probated in the state's courts. So, even if you're willing to take on the job, it's possible -- though not likely -- that you won't qualify under state law. Generally, any adult who hasn't been convicted of a felony can serve as an executor. But a fair number of states impose special requirements on out-of-state executors. For more information about the law in your state, see Restrictions on Out-of-State Executors or consult an attorney.
Skills You'll Need
The best executors and trustees are people who are careful, patient, unquestionably honest, well-organized, and committed to doing a good job. Executors must get along with people -- especially the other beneficiaries. They need a good bit of spare time, too. You can expect to spend many, many hours -- lasting six months to a year -- to do the job. You don't, however, need to be a financial wizard or legal expert. You can always get professional or personal help with your financial or legal tasks. You can ask a sibling for help or hire professionals (accountants, tax preparers, lawyers, real estate brokers, and so on) who have the expertise you need. Their fees will be paid from estate funds, not your own pocket.
Some executors happily turn over the whole probate process to a lawyer; others do much of the routine work themselves and consult experts from time to time, to get over rough spots. (Learn more about the executor's job in Nolo's article What Does an Executor Do?)
Things to Consider
Every estate and every family situation is unique. The difficulty of serving as executor depends on many factors: the size of the estate, your state's laws, and the complexity of the deceased person's financial affairs, to name a few.
Complexity of the job. If the deceased person has left property of modest value, with a few major assets and no estate tax issues, accepting the executor's may not be such a big deal. Or, if you've already been helping manage someone's finances, handling things after death may be a natural extension of your duties. But, if you're unfamiliar with the person's affairs, you may face as many practical problems as legal ones: finding the will, untangling investments, digging up insurance policies, and the like.
If you're being asked to be an executor, the complexity of your state's probate system also matters. The trend is to make the process simpler but, unfortunately, not every state has jumped on this bandwagon.
Personal factors. If you'll inherit most or all of the property, you have a strong incentive to serve as executor. You'll be in charge of what will shortly be your own property, and you won't have other beneficiaries to worry about. If you're one of several beneficiaries, however, it may be helpful to ask yourself some questions about the reality you will face.
- If you live far away, will it be too difficult or expensive for you to handle the estate?
- How likely are family members to let you do your job without second-guessing every decision?
- How likely are other inheritors to bicker among themselves or with you? Would conflict be reduced or intensified if someone served as coexecutor with you?
- If you're worried about taking time away from work to perform your executor's duties, what payment will you be legally entitled to collect for your services?
- Is there anyone else willing and able to do a conscientious job or, at least, share the work as a coexecutor?
- If the will names someone else to serve as a coexecutor with you, do you think you'll work well together?
There are ways to constructively deal with many potential problems. But thinking about them now will help you prepare mentally for the challenges ahead and may prompt you to figure out creative ways to avoid problems. Finally, you may find that the process of winding up a loved one's affairs is unexpectedly therapeutic. There is satisfaction in knowing that you're doing what the deceased person wanted.
If you don't serve, who will? If you decline the job after the person who names you has died, or resign after serving for a while, someone else must take over. If you're an executor and you haven't yet begun probate, you should simply notify the alternate executor named in the will. If there isn't anyone, someone must either take over informally or begin probate proceedings and ask the court to be appointed an executor. If you resign as executor after having started probate court proceedings, you can submit your resignation to the probate court and provide a written record of what (if anything) you have done. The court will then appoint someone to take your place.
For more information on additional will provisions to be aware of, see Nolo's article Settling an Estate: When Executors Should Take a Second Look at the Will.
For helpful step-by-step guidance on serving as an executor, see The Executor's Guide: Settling A Loved One's Estate or Trust, by Mary Randolph, J.D. (Nolo).