An Executor, or currently referred to as a Personal Representative, is a person who handles someone else’s estate if that party dies with a Will. Naming an executor/personal representative when making your estate plan is a very important decision that should never be overlooked. To help guide your decision, let’s consider some of the most frequently asked questions on the topic.
What Exactly is an Executor?
Executors are individuals that handle the estate of someone who died (a decedent) with a Will. An executor performs some of the following important functions:
- Identifies and takes control of estate assets,
- Handles and settles the liabilities of the estate,
- Distributes an estate’s property according to the Will,
- Files final tax returns, and
- Works with the probate court to manage an estate’s affairs.
What are the Basic Requirements for Serving as an Executor?
Your executor must be at least 18 years of age and of sound mind. “Sound mind” means the person has not been judged incapacitated by the court. Most states also say that your executor cannot be a convicted felon or someone who has committed a “crime involving moral turpitude.”
Can you Name a Corporation as an Executor?
You can usually only name a corporation as an executor if the corporation is a:
- Trust company or national bank that has not drafted your Will,
- Professional service corporation, professional limited liability company, or a limited liability partnership whose members are exclusively attorneys, or
- Nonprofit corporation, if its articles of incorporation or bylaws allow it to serve and it is fully in compliance with all state corporation laws.
Are There Restrictions on Naming an Out-of-State Executor?
Many states impose restrictions on naming out-of-state executors. Some restrictions may include that the executor must:
- Post bond, and
- Appoint an -in-state agent to accept legal papers on the executor’s behalf.
As a practical matter, it’s almost always best to appoint an executor who lives near you. Your executor may have to take care of and manage daily tasks that could span the course of months. Executors may also have to make frequent court appearances to help settle an estate’s affairs. Travel time and travel expenses between different states could grow quite extensive.
Is an Executor the Same Person as an Administrator?
No. While administrators are very similar to executors, they help manage an estate’s affairs when a Will does not exist. Administrators essentially distribute the property of an estate as instructed by state law or statute, which will identify who receives certain percentages of an estate (often close relatives).
Contact McWilliams Law Group for Help
- Will drafting, execution and review
- Living trusts
- Advance healthcare directives (living wills)
- Powers of attorney
- Estate and gift tax issues
- Guardianships and conservatorships
- Choosing the appropriate executor
The skilled attorneys at our firm can help thoroughly analyze your estate and strategize the best means of transferring your assets, minimizing taxes, establishing guardianship, and supporting philanthropic causes. Contact us now and let us help protect your personal security, family, and legacy.