What Should You Consider When Choosing an Executor?

What Should You Consider When Choosing an Executor?

The person you name as executor in your will may eventually be responsible for gathering your assets, protecting your property, addressing outstanding obligations, and distributing your estate to your beneficiaries.

It is an important job, so your decision should involve more than simply naming your oldest child or closest relative. The person who seems like the most obvious choice may not always be the person best prepared to handle the responsibility.

Your executor should be trustworthy, organized, willing to communicate, and capable of making careful decisions during what may be a difficult time for your family. Your choice must also satisfy the legal requirements of the state where your estate will be administered.

What Does an Executor Do?

An executor is the person named in a will to manage the deceased person’s estate.

After being formally appointed, the executor may be responsible for:

• Locating and submitting the original will

• Identifying and protecting estate property

• Gathering financial records

• Determining how assets are titled

• Obtaining valuations or appraisals

• Addressing valid debts and expenses

• Coordinating required tax filings

• Communicating with beneficiaries

• Distributing property according to the will

• Maintaining records of estate transactions

The executor must follow the will and applicable law. They cannot change your instructions simply because they believe a different distribution would be fairer or more practical.

An executor also has a fiduciary duty to the estate and its beneficiaries. This means the executor must act honestly, avoid using estate property for personal purposes, keep appropriate records, and place the estate’s interests ahead of their own.

Who Can Legally Serve as an Executor?

Executor qualifications are governed by state law. Because The Law Offices of Joseph D’Urso works with families in both New Jersey and New York, it is important to understand that the exact requirements can differ depending on where the person lived and where the estate will be administered.

In general, the person selected must be a legal adult and capable of handling their own affairs. A court may decline to appoint someone who has been legally determined to lack capacity or who appears unable to perform the responsibilities involved.

A court may also examine whether there is a legal reason the nominated executor is unsuitable to serve. Depending on the state and circumstances, concerns involving dishonesty, serious misconduct, substance abuse, financial irresponsibility, conflicts of interest, or an inability to understand the position may affect the appointment.

The fact that someone is named in a will does not guarantee that the court will appoint them. If that person is legally disqualified, has died, declines the appointment, or is unable to serve, the court may appoint an alternate executor named in the will or another qualified person.

That is one reason every will should name at least one alternate executor.

What Qualities Should You Look For?

Meeting the legal requirements is only the starting point. Someone can be legally qualified to serve and still be a poor practical choice.

Consider the following qualities before naming your executor.

Trustworthiness

Your executor may have access to financial accounts, personal records, valuable property, and sensitive family information. You should feel confident that this person will follow your instructions and manage everything honestly.

Organization

Estate administration can involve numerous documents, deadlines, payments, account statements, and communications. An executor does not need to be a professional bookkeeper, but they should be able to maintain records and keep track of important details.

Availability

Even a highly responsible person may not be the best choice if they do not have the time to take on the position. Settling an estate can take months and sometimes longer, depending on the assets and issues involved.

Before naming someone, consider their work responsibilities, family commitments, health, and willingness to devote time to the process.

Communication Skills

An executor may need to communicate with beneficiaries, financial institutions, attorneys, accountants, real estate professionals, appraisers, and government offices.

Clear and consistent communication can reduce misunderstandings. An executor who avoids difficult conversations or does not respond to beneficiaries may unintentionally create distrust and conflict.

Ability to Remain Neutral

Family relationships can become strained during estate administration. Your executor should be able to follow the will without favoring one beneficiary, making decisions based on personal disagreements, or allowing family pressure to influence their actions.

Willingness to Seek Help

An executor does not need to know every legal, financial, or tax rule. It is often more important that the person recognizes when professional assistance is needed.

An executor who asks questions before making a major decision may be better suited to the role than someone who acts confidently without understanding the consequences.

Should Your Executor Live Nearby?

Your executor does not necessarily need to live in the same town or state, but distance can make the job more complicated.

An executor may need to visit a residence, secure personal property, attend appointments, sign documents, deal with local institutions, or manage the sale of real estate. Someone who lives far away may still be capable of serving, but travel and scheduling can add time and expense.

Technology has made it easier to handle many responsibilities remotely. However, certain tasks may still require a local presence or assistance from professionals near the estate property.

Can You Name an Executor Who Lives Outside New Jersey or New York?

A person is not necessarily prevented from serving simply because they live in another state. However, a nonresident executor may face additional requirements or practical complications.

Depending on the state and circumstances, a nonresident may need to appoint someone within the state to accept legal documents, complete additional filings, provide information to the court, or satisfy bonding requirements.

New York also has particular rules concerning certain nonresident executors, including individuals who are not United States citizens. Because these requirements depend on the person selected and the circumstances of the estate, they should be reviewed before the will is signed.

If the person you want to name lives outside New Jersey or New York, that does not automatically mean you need to choose someone else. It does mean that you should determine whether the appointment could create additional requirements for that person and your estate.

Will Your Executor Need a Bond?

A probate bond is a type of financial protection for the estate and its beneficiaries. It may protect against losses if an executor mishandles, misuses, or improperly distributes estate property.

The need for a bond depends on state law, the language in the will, the executor’s circumstances, and any concerns raised during the appointment process.

Many wills include language requesting that the executor serve without a bond. This can reduce an additional expense and administrative step. However, the court may still require a bond in certain circumstances.

Obtaining a bond may involve an application and financial review. If the nominated executor has significant credit problems or other financial concerns, qualifying for a bond could become difficult.

The decision to waive a bond should be made carefully. Eliminating the requirement may simplify the appointment, but a bond can also provide protection when there are questions about the person handling the estate.

Can a Beneficiary Also Serve as Executor?

Yes. It is common for a spouse, adult child, or other beneficiary to serve as executor.

Being a beneficiary does not automatically create a disqualifying conflict. However, the executor must separate their personal interest in receiving an inheritance from their legal responsibility to administer the entire estate fairly.

For example, an executor who is also a beneficiary cannot delay another beneficiary’s distribution to gain leverage in a family disagreement. They also cannot use estate funds for personal expenses unless those expenses are properly authorized and documented.

When there is a history of conflict among family members, naming a beneficiary as executor may lead to additional scrutiny. In those situations, it may be worth considering a more neutral person.

Should You Name Co-Executors?

Some people name two children or other relatives as co-executors because they do not want anyone to feel excluded. While this may appear fair, it can make estate administration more difficult.

Co-executors may both need to sign documents, approve transactions, communicate with professionals, and agree on important decisions. If they live in different states, have different schedules, or already have a strained relationship, routine tasks can become unnecessarily complicated.

There are situations where co-executors work well, particularly when the individuals communicate effectively and bring complementary skills. The decision should be based on how they will work together, not solely on an attempt to treat family members equally.

You can treat your children equally as beneficiaries without giving each of them the same administrative role.

Talk to the Person Before Naming Them

Serving as executor is not an honorary title. It can involve months of work and responsibility.

Before naming someone, speak with them about the position. Explain why you are considering them and make sure they are willing to serve. You should also tell them where your original will and other important records will be kept.

A person named as executor can decline the appointment after your death. Discussing the role in advance reduces the chance that your family will discover too late that your chosen executor is unwilling or unable to act.

Review Your Choice Over Time

The executor who is right for your estate today may not remain the best choice indefinitely.

You should reconsider your appointment after major changes involving:

• Marriage or divorce

• A death in the family

• A move to another state

• A change in family relationships

• A serious illness or disability

• Significant financial changes

• The executor’s age, health, or availability

• A change in the size or complexity of your estate

If your first choice is no longer appropriate, your will can be updated to name someone else. It is better to make that change while you are able to clearly document your decision than to leave your family with an executor who cannot serve.

Contact The Law Offices of Joseph D’Urso

Choosing an executor requires both practical judgment and an understanding of the legal requirements that apply to your estate. We can help you evaluate your options, identify potential complications, and create a will that clearly names your executor and alternate choices.

The Law Offices of Joseph D’Urso is based in Bergen County and helps individuals and families throughout New Jersey and New York with estate planning, probate, and estate administration.

Have questions about choosing an executor or not sure where to start? Contact our office to schedule a short introductory call and discuss your estate planning needs.