Who to choose as executor of your will and estate.
What is an executor?
The executor (called a personal representative in some states) is the person named in a will to be in charge of winding up the person's financial affairs after death. Basically, that means taking care of property, paying bills and taxes, and seeing to it that assets are transferred to their new rightful owners. If probate court proceedings are required, as they often are, the executor must handle them or hire a lawyer to do it.
Executors can request payment from the estate. The exact amount is regulated by state law and is affected by factors such as the value of the deceased person's property and what the probate court decides is reasonable under the circumstances. Commonly, however, close relatives and close friends (especially those who are inheriting a substantial amount anyway) don't charge the estate for their services.
How do I choose an executor?
Most executors don't need special financial or legal knowledge; most people name their spouse or an adult child. Common sense, conscientiousness, and honesty are the main requirements. An executor who needs help can hire lawyers, accountants, or other experts, and pay them from the assets of the estate.
The person you choose should be honest, organized, and good at communicating with people. If possible, name someone who lives nearby and who is familiar with your financial matters; that will make it easier to do chores like collecting mail and finding important records and papers.
Many people select someone who will inherit a substantial amount of their property. This makes sense because such a person is likely to do a conscientious job of managing your affairs after your death. He or she may also know where your records are kept and understand why you want your property left as you have directed.
Legally, you can name anyone you want to be your executor. In most states, the only people who can't serve as executors are children under 18 or convicted felons. Some states do, however, impose restrictions on out-of-state executors. For example, a few require that an out-of-state executor be a relative or a primary beneficiary under your will. And some states require that a nonresident executor obtain a bond (an insurance policy that protects your beneficiaries in the event of the executor's wrongful use of your estate's property) or name an in-state resident to act as the estate's representative.
No matter who you pick, make sure the person is willing to do the job. Discuss it together before you finalize your will. When it comes time, however, an executor can accept or decline the responsibility. And someone who agrees to serve can resign at any time. If the will named an alternate executor, that person will take over. If not, the court will appoint someone to step in.
Must an executor hire a lawyer?
Not always. Doing a good job requires persistence, and attention to tedious detail, but not necessarily a law degree. If assets must go through probate court, the process is mainly paperwork. In the vast majority of cases, there are no disputes that require a decision by a judge, and the executor may never see the inside of a courtroom. It may even be possible to do everything by mail.
An executor can probably handle the paperwork without a lawyer if he or she is the main beneficiary, the deceased person's property consists of common kinds of assets (house, bank accounts, insurance), the will seems straightforward, and good self-help materials are at hand. (One good book is
The Executor's Guide, by attorney Mary Randolph (Nolo), which guides executors through the process of winding up a loved one's estate, step by step.)
If, however, the estate has many types of property, significant tax liability, or potential disputes among inheritors, an executor may want some help.
There are two ways for an executor to get help from a lawyer:
- Hire a lawyer to act as a "coach," answering legal questions as they come up. The lawyer might also do some research, look over documents before the executor files them, or prepare an estate tax return.
- Turn the probate over to the lawyer. If the executor just doesn't want to deal with the probate process, a lawyer can do everything. The lawyer will be paid out of the estate. In most states, lawyers charge by the hour ($150-$200 is common) or charge a lump sum. But in a few places, including Arkansas, California, Delaware, Hawaii, Iowa, Missouri, Montana, and Wyoming, state law authorizes the lawyer to take a certain percentage of the gross value of the deceased person's estate unless the executor makes a written agreement calling for less. An executor can probably find a competent lawyer who will agree to a lower fee.
Can an executor get help from someone besides a lawyer?
Yes. Here are some other sources of information and assistance.
- The court. Probate court clerks commonly answer basic questions about court procedure, but they staunchly avoid saying anything that could possibly be construed as "legal advice." Some courts, however, have lawyers on staff who look over probate documents, point out errors in the papers, and explain how to fix them.
- Other professionals. For certain tasks, an executor may be better off hiring an accountant or appraiser than a lawyer. For example, a CPA may be a big help on estate tax matters.
- Paralegals. Many lawyers delegate probate paperwork to paralegals. Now, in some areas of the country, experienced paralegals have set up shop to help people directly with probate paperwork. These paralegals don't offer legal advice; they just prepare documents as the executor instructs them, and file them with the court. To find a probate paralegal, an executor can look online or in the Yellow Pages under "Legal Document Preparation" or "Attorney Services." The executor should hire someone only if that person has substantial experience in this field and provides good references.
The Executor's Guide, by attorney Mary Randolph guides executors through the process of winding up a loved one's estate, step by step.