by BarryHow to Choose the Right Executor for Your Will
Selecting the right executor for your will is one of the most important decisions you’ll make in your estate planning process. The executor is responsible for managing and distributing your assets, ensuring your wishes are honored, and navigating legal and financial processes after your passing. Choosing someone who is trustworthy, capable, and aligned with your goals is critical to ensuring your estate is handled smoothly and efficiently.
At Edwards Law, we understand how challenging this decision can be. Below, we’ll outline the key factors to consider when choosing an executor and why it’s important to make an informed choice.
What Does an Executor Do?
An executor is the person or entity legally responsible for carrying out the terms of your will. Their duties include:
- Probate Administration: Filing the will with the court and overseeing the probate process.
- Managing Assets: Safeguarding and managing your property and finances until they are distributed.
- Paying Debts and Taxes: Settling any outstanding debts and ensuring taxes are paid.
- Distributing Assets: Ensuring your beneficiaries receive their inheritances as outlined in your will.
Given these responsibilities, the executor plays a pivotal role in the efficient and fair administration of your estate.
Qualities to Look For in an Executor
When choosing an executor, consider someone who possesses the following qualities:
- Trustworthiness: The executor will have access to sensitive information and your assets. Choose someone who will act in the best interests of your beneficiaries.
- Organizational Skills: Managing an estate involves a lot of paperwork and deadlines. An executor needs to be detail-oriented and capable of staying on top of tasks.
- Financial and Legal Knowledge: While not mandatory, familiarity with financial and legal matters can make the process smoother. Alternatively, your executor can hire professionals like attorneys and accountants to assist them.
- Impartiality: Family dynamics can complicate estate administration. Choosing someone impartial, who won’t be influenced by personal conflicts, can help ensure fairness.
- Availability: The executor should have the time and willingness to take on these responsibilities, which can span months or even years.
Should You Choose a Family Member or a Professional?
Many people choose a close family member, such as a spouse or adult child, to serve as their executor. While this can be a good choice, it’s important to assess their ability to handle the role objectively. Emotional ties, family disputes, or lack of experience can sometimes make it difficult for a family member to fulfill the role effectively.
Alternatively, you can appoint a professional, such as an attorney or a trust company, to serve as your executor. Professionals bring expertise and impartiality to the process, making them a great option for complex estates or when family dynamics are challenging.
Tips for Making Your Decision
- Discuss the Role: Speak with the person you’re considering to ensure they understand and are comfortable with the responsibilities.
- Consider Backup Options: Always name an alternate executor in case your first choice is unable or unwilling to serve.
- Review Periodically: Circumstances change, so revisit your choice every few years to ensure it remains appropriate.
How Edwards Law Can Help
At Edwards Law, we specialize in estate planning and can guide you through the process of selecting the right executor. Whether you’re considering a family member, a close friend, or a professional, we’ll help you weigh the pros and cons to make an informed decision.
Take the Next Step
Choosing the right executor for your will is a critical part of protecting your legacy and providing for your loved ones. If you’re ready to start your estate planning journey or have questions about selecting an executor, contact Edwards Law today and schedule a consultation. Let us help you create a plan that gives you peace of mind and ensures your wishes are carried out.
by BarryReviewing Your Estate Plan after the Death of a Loved One
The death of a loved one is never easy. Regardless of your relationship with the deceased (for example, a relative, significant other, or close friend), you need space and time to process and grieve your loss. Once you have had time to cope with all that has happened, you should consider updating your estate plan in light of your loved one’s death.
Although your estate plan primarily focuses on what will happen if you become incapacitated (unable to make or communicate your wishes) or die, the death of a loved one can have a significant impact on your planning. If you have an estate plan, one of the first things you need to do when a loved one dies is to review the documents with the following questions in mind:
Was your deceased loved one named as a beneficiary of money or property under your will or revocable living trust? If so, do your documents address what happens to that money or property should your loved one predecease you?
One of the main objectives of establishing a will or revocable living trust is to create a plan for what will happen to the things you own at your death. If you have strong feelings about who should receive your money and property, you must name who will inherit from you and also who will inherit the money and property if your first choice dies before you.
If your will or trust does not list a contingent (backup) beneficiary, the gift in question is canceled when the first-choice beneficiary passes away, and the accounts and property you wanted to leave to your now-deceased loved one become part of your general estate and will be distributed according to the remaining terms of your will or trust. This cancellation can be problematic if your beneficiary has a spouse, children, grandchildren, or other loved ones whom you would have wanted to receive the beneficiary’s inheritance instead.
Some states have enacted antilapse laws to protect against this result. In these jurisdictions, the beneficiary’s heirs will receive the gifts. There are a few caveats and distinctions from jurisdiction to jurisdiction. For example, some states limit the heirs who can benefit from antilapse laws to blood relatives.
Is a trusted decision-maker now deceased?
As part of your comprehensive estate plan, you likely selected several different important decision-makers to act on your behalf if you become incapacitated (agents under your financial and medical powers of attorney and a successor trustee) or to wind up your affairs after your death (a successor trustee, personal representative, or executor). If your deceased loved one held any of these positions, make sure a backup was nominated. If not, you need to update the affected document to include a new first choice and at least one alternate. If you have already named a backup in the document, you will want to update your document to name your backup as your new first choice and remove your deceased loved one’s name to prevent confusion when a third party reviews the document.
Personal representative (also known as an executor). This trusted individual, appointed in your last will and testament, is responsible for collecting all your accounts and property, paying your outstanding debts and taxes, and distributing your money and property to your named beneficiaries after your death. This person’s task is to wind up your affairs, which can be time-consuming. If your chosen personal representative dies before you and there is no named backup at the time of your death, the probate court will use your state’s laws to determine who is next in line to serve as personal representative.
Co-trustee or successor trustee of your trust. Serving either with you (as co-trustee) or after you become incapacitated or die (as successor trustee), this trusted person or entity is charged with managing, investing, and distributing the money and property from your trust to you during your lifetime (if you are incapacitated or are otherwise unable to act as trustee) and to your chosen beneficiaries after your death.
If your deceased loved one was a co-trustee with you, you should review your trust agreement to see what happens next. There may be a provision that either allows you to continue serving as the only trustee, names a specific person to step in and serve with you as co-trustee, or describes how to determine who your new co-trustee will be.
If your deceased loved one was named as your successor trustee, nothing noticeable will happen with respect to how your trust is managed right now. However, if you become incapacitated or die and there is no successor trustee, your loved ones must look to your trust agreement for guidance on filling the vacancy. Your trust may provide that a certain number of your beneficiaries can appoint a new trustee without court involvement, or your trust might require that the court approve any new trustee. The outcome will depend on the trust’s wording and your state’s laws. Because your trust is revocable and amendable during your lifetime, it is best to update your trust to appoint a new successor trustee or change any of these provisions as needed while you still have the ability to do so.
Agent under a financial power of attorney. Your agent is an individual you choose to manage your property and finances (such as communicating with your mortgage company, paying your bills, or accessing funds in your bank account for your care) on your behalf. If the person you selected is deceased and there is no named backup, no one else can act on your behalf when needed. If you become unable to manage your property and finances without appointing an agent in a financial power of attorney, your loved ones will have to go to court and have someone appointed by a judge to take care of your financial and property matters. The judge will make this determination based on state law, which prioritizes a spouse or blood relative serving in this role, and the person selected may not be the person you would have chosen. Not only is this process time-consuming during a stressful time, but it can be expensive and exposes the details of your condition and family dynamics to the public.
Agent under an advance directive for healthcare. Your agent under your advance directive for healthcare is typically authorized to make decisions or communicate your medical wishes in the event you are unable to do so yourself. Because this person can act only when you cannot, you may not feel an immediate need to update your advance directive for healthcare if your chosen agent has passed away. However, if you have an accident, become incapacitated, or are otherwise unable to communicate your medical wishes and you do not have an agent who can act for you, your loved ones must go to court to have a guardian appointed before anyone can speak on your behalf. The judge will look to the standards and guidelines provided under state law to aid them in appointing the appropriate person, who may not be the person you would have chosen to make your decisions. Second, the selected person may not know your wishes about the medical care you want to receive.
Guardian for your minor child. You have likely invested a lot of time and consideration in deciding who you would like to serve as the guardian of your minor children if you and the children’s other parent are unable to care for them. If the loved one you have selected has passed away, it is imperative that you update this selection. While your circumstances may vary, if your chosen guardian is unable to serve for any reason, and you have no alternate guardian nominated, the probate court will determine who will raise your child. As with other roles, the selected person may not be the one you would have chosen, and absent input from you, the judge may have limited information when making this critical decision.
We Are Here to Help
We understand that you are grieving the loss of a loved one. When you are ready, we are here to help you take the next step in your estate planning journey, whether you are starting, completing, or updating your estate plan. Contact us today to schedule your in-person or virtual appointment.