When most people contemplate the creation of their Last Will and Testament, they focus on decisions related to the gifts they will make within that Will. Consequently, appointing someone as the Executor of their estate is often an afterthought. In fact, failing to give sufficient thought to the choice of an Executor is one of the most common of all estate planning mistakes. To help you avoid making that mistake, an Oklahoma estate planning attorney at Parman & Easterday offers tips on how to choose the right person as your Executor.
What Does an Executor Do?
Your Executor, also referred to as your Personal Representative, is responsible for administering your estate. Among the most important duties and responsibilities of an Executor are:
- Identifying and protecting the estate assets. The first thing any Executor must do is locate all relevant estate planning documents which may include a Will, trust agreement, life insurance policies, and/or Letter of Instructions among others. These documents should provide information regarding the estate assets which must all be identified and secured at the beginning of the probate process.
- Notifying creditors and paying claims. All known creditors may be personally notified that probate is underway but for unknown creditors the Executor must notify them via publication in a local newspaper. Creditors have a statutory period of time within which they must file claim against the estate. The Executor evaluates each claim filed and approves or denies the claim. Approved claims are paid out of the available estate assets.
- Litigating any claims. Disputes are far from uncommon during the probate of an estate. If a beneficiary or heir questions the validity of the Will submitted for probate, a Will contest might be initiated. The Executor is required to defend the Will throughout the ensuing litigation.
- Calculating and paying taxes. Every estate is potentially subject to federal (and sometimes state) gift and estate taxes. The Executor is responsible for determining if the estate owes estate taxes and, if it does, the tax must be paid out of estate assets. An error in the calculations used on the estate tax return could be devastating to the overall probate of the estate.
- Distributing estate assets. The Executor is responsible for preparing any legal documents necessary to effectuate the transfer of the remaining assets to the intended beneficiaries and/or heirs of the estate.
Questions to Ask When Choosing Your Executor
Instead of just appointing a spouse, sibling, or best friend as your Executor without thinking about it, take some time to decide if they are really the best choice. Ask yourself if the individual is capable and/or willing to take on the task of administering your estate. To help you make that decision, consider asking yourself the following questions:
- Does the individual have a legal or financial background that might be beneficial during the probate process?
- Does this person have the time to devote to probating your estate?
- Does the person live too far away to be the Executor?
- Does your estate include real property that will require management during the probate of your estate? If so, you really need a local Executor.
- Is the proposed Executor good at conflict resolution?
- Will the appointment of this person spark conflict?
- Does the individual want to be your Executor? Never assume the answer to this question is yes because often loved ones do not want the stress of administering the estate of a recently deceased loved one.
Yes. The person you appoint can decline to act as your Executor which is one reason why you need to make sure the person you appoint is willing to serve.
If you die intestate (without a Will), the court will have to appoint someone to oversee the probate of your estate.
An Executor is entitled to a reasonable fee for his/her duties and responsibilities during probate. The Executor’s fee is paid out of estate assets.