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How Do I Choose An Executor

Will Executors

An executor is the person who will be responsible for distributing your property, paying your debts and managing your property during the probate of your estate. This is an important issue, so this section a little long, but worth the read. The following considerations are covered in this section:

  • Legal Qualifications for an Executor
  • Choosing the best executor
  • Co-Executors
  • Alternate Executors
  • Paid Executors
  • Executor Fees

Legal Qualifications for an Executor

In order for person to be legally qualified to be your executor they must be:

  1. Over the age of 18
  2. Not be subject to a conservatorship or otherwise unfit (must be mentally competent)
  3. They must not have committed fraud or waste or otherwise wrongfully neglected the estate
  4. Be a US resident (if you would like to name someone who is not a US resident, let us know and we will discuss the options with you)
  5. Not be a business partner, if a another person with an interest in the business objects

Choosing the Best Executor

An executor is responsible for all of your assets that are in your will once you die. They can be charged with losses resulting from waste or neglect if they do not timely and efficiently handle your assets.

Because your executor will have so much authority over your belongings, it is important you choose someone who is trustworthy and who will be mentally competent to carry out these responsibilities after your death. It is not unheard of for an executor to empty bank accounts or sell property for their personal gain.

Generally, the person who is going to receive the bulk of your assets is chosen as an executor. This is commonly your spouse or domestic partner, but could also be your parents, siblings, or close friend. If you think your partner or spouse will not be able to handle the responsibility because of their grief, age, or any other reason, choose the person you think will be best able to handle the task. Because sometimes it is best to choose an executor who will have to travel, take time off work, or otherwise be burdened by the task, it is common to leave your executor something in the will for fulfilling their duties in order to cover their expenses and give them the financial freedom to do the job well.

Naming Co-Executors

A person might want to name more than one person as an executor because they feel the responsibility is better shared or because they have property out of state.

If you are going to name two people to share the responsibility of being your executor, or naming co-executors, you should consider keep in mind that that there will be many decisions to be made and it is common for co-executors to disagree. If the people you name are family or friends, they will likely be emotional at the time, and naming co-executors might lead to unnecessary conflict.

if you are naming a co-executor because you have some property in another state, naming an executor in that state to be responsible for that property is a good idea. This person is called an ancillary executor and is only responsible for the property in the non-California state.

Naming an Alternate Executor

Naming an alternate executor is important because the primary executor might become sick or die before you do, or just simply not feel they can handle the task and decline their responsibilities. An alternate executor is not a co-executor. An alternate executor only has responsibilities if the primary executor is unable or unwilling to act as an executor.

Paid Executors

There are sometimes reasons for choosing a paid executor—usually a lawyer—instead of your spouse. Your spouse may be incapacitated by grief, illness, or disability. Nonetheless, he or she as executor will be personally liable for unpaid estate taxes and fines for late filings, even if he or she has delegated such tasks to a lawyer.

If you think your spouse may not be up to the job (considering that he or she may also be saddled with sole responsibility for any minor children), you might choose a lawyer or other professionals, even though it means paying a fee. Remember, this is a job that, primarily because of tax procedures, can take more than three years of involvement, though most estates take far less.

Executor Fees

If the executor is a beneficiary—for example, a family member—he or she may choose to forgo the statutory executor's fee, but you can expect any executor who is not a beneficiary, such as a bank or a lawyer, to charge a fee.

Fees vary by state and usually are set as a percentage of the estate's value. For small and mid-sized estates—estates under $200,000, for example—expect a fee of 1 to 4 percent of the total estate.

summerall law
Summerall Law, P.C. - Oakland Estate Planning Attorney
Located at 3873 Piedmont Avenue, Suite 8,
Oakland, CA 94611
Phone: (415) 275-3283
Local Phone: (415) 944-9406

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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