You finally went and talked to your attorney about drafting a will. You came home to mull over all that you learned and answer all those questions your attorney asked. The first part was easy... what are your assets; what are your debts; who are your family members; who should receive your property when you die...? Now you’ve hit a hard one. Who do you want to name as your Executor? For many clients, choosing an Executor can be one of the hardest parts of estate planning. Sometimes there is an obvious answer, such as a spouse or responsible adult child, but often there is not.
Who can serve as my Executor?
The law tells us that in Virginia, the Executor must be an adult who is suitable and competent to perform the duties required of an Executor. The Executor cannot be someone under a disability, which, in short, means someone who is convicted of a felony (while the person is confined), someone under the age of 18, or someone who is incapacitated. Additionally, the court may require the Executor to post bond and obtain surety on the bond from an insurance company. In order to obtain surety, the Executor would need to have acceptable credit history. This is particularly applicable when an out-of-state Executor is named, which will also require appointment of an in-state Agent.
Who might not be a good choice?
You may know a lot of people who are competent adults with good credit history. However, there’s a big difference between who can serve as your Executor and who is a good choice. Your Executor should be someone who you trust entirely, such as a close family member or friend – someone who is honest, organized, responsible, attentive to details, good with financial matters, and able to get along with all your beneficiaries. The job of serving as Executor is also a tough one. You will want to name someone who is up to the challenge.
When considering people who might fit the bill, it’s also important to take some other factors into consideration. You should think about the person’s personal situation with their family and profession. Someone who is incredibly busy with children, work, or otherwise, might not be the best choice, as it may be hard for them to find time to devote to the administration of your estate. Likewise, someone who is geographically distant from your home may find it difficult to handle your estate from such a distance.
You should also think about the tasks you will be asking of your Executor and decide whether the person you are considering has the skills necessary to attend to these tasks. Someone lacking the requisite skills might not be the best choice. For example, if you are asking your Executor to make decisions about who gets certain items of tangible personal property, but some of the beneficiaries don’t get along, will your chosen Executor have the skills and ability to handle disagreements?
Finally, naming co-Executors may not be the best choice. Naming more than one person to serve increases the potential for disagreements that could ultimately land the co-Executors in front of a judge to make decisions regarding the estate, resulting in unnecessary costs and delays. You may think that naming both your children to serve as co-Executors of your estate will show that you are treating them equally and fairly. However, you may be setting them up for failure if they are unable to agree on how things should be handled. It usually is best to name just one of them as the sole Executor, and perhaps name the other as a successor Executor or as another fiduciary in your estate plan, such as your Agent under your Power of Attorney. You also can have an open conversation with them to let them know why you are making this decision. Remember that settling an estate, regardless of the complexity of the assets and distribution scheme, can be an emotional experience, and emotions can exacerbate tensions.
What if I don’t have any close family or friends who are able to serve as Executor?
This is a tough question but a very common scenario. If you can’t think of a close family member or friend who would be a good choice to administer your estate, you may want to consider naming a professional Executor. The biggest downside to naming a professional Executor is that they are often more expensive than a non-professional individual. While all Executors are entitled to receive compensation for settling your estate, all professionals will do so, while close family members and friends often will not. However, the fee is often worth it for the peace of mind. There are quite a few options here.
One place to start is to check with your bank, investment advisor, or broker to see if they are willing to serve and what fee they would charge. It is important to share with them the size and complexity (asset make-up) of your estate, as they are sometimes limited in what they are allowed to handle. Another option is a trust company. Their fees may be a little lower than the banks, and they usually have more flexibility in the size/complexity of estates they can handle. Plus, they are specialists in administration. Finally, you can name another trusted professional such as a CPA, lawyer, or law firm (e.g., GuideOn Legal Services).
Don’t let the decision hold up your progress.
Choosing an Executor can seem like a huge decision, and it certainly is not one to take lightly. However, you shouldn’t let this decision hold up your progress with getting your will drafted. As long as you have capacity to make a will, you likely can change your decision regarding the Executor by executing a codicil to your will. It’s far more important to get the will in place than to make sure you’ve made the perfect decision about your Executor. Additionally, if between the time you draft your will and the time you die, something happens to the person or institution you have named, Virginia law provides a hierarchy of people entitled to administer your estate. While these people may not be your first choice, you can at least rest assured that your estate will not go unsettled. Finally, as circumstances change with your chosen Executors, don’t forget to revisit your estate plan to ensure the chosen Executor is still a good choice.
Let GuideOn be your guide.
If you are struggling to figure out who to choose as your Executor, let us help. We can work through this decision with you as part of your comprehensive estate planning, and in most cases, GuideOn Legal Services also can be named in your will to serve as your Executor.