5 Tips for Choosing the Right Executor
09.19.2022 | Trusts and Estates
How to Choose an Executor
After someone passes away, a personal representative will administer their estate according to the decedent’s wishes and California law. If the decedent had a will, the personal representative is called an “executor” because that person “executes” the terms of the will. If the decedent passed away without a will in place, the personal representative is known as an administrator because that person “administers” the estate according to California law.
A will usually include the name of the executor of the decedent’s estate. If the will name an executor, the court will appoint that person to be the personal representative (except in a few narrow circumstances). If the will does not name an executor, but it evidences an intent to have a particular person administer the estate, that person will be named as the personal representative.
Naming an executor is one of the most important purposes of a will, as the executor is the one to carry out the decedent’s final wishes, as outlined in the will.
Here are some tips for choosing an executor for your estate:
Choose Someone Who is Qualified
California law places very few limits on who can act as an executor. But if you choose someone who cannot act as an executor, the court can disregard your choice and appoint someone else.
- Age 18 or older and
- Capable of administering the estate
The second requirement is broad, but it speaks primarily to the mental and physical capacity of the executor. For example, an executor might be incapable of administering the estate if they:
- Have a mental illness that is not controlled
- Have an intellectual disability that prevents them from understanding the duties of an executor
- Have a communication disability that makes it difficult to give or receive instructions
- Have dementia
- Are comatose
If the executor cannot meet these basic qualifications, the court will decline to appoint the executor to act as a personal representative and choose someone who does qualify to represent the estate.
Choose Someone That is Responsible
An executor has many responsibilities that must be carried out on time and as completely as possible. Some of the jobs of an executor include:
- Paying bills
- Preparing tax returns and paying taxes
- Notifying the Social Security Administration, insurers, pension administrators, and financial institutions of your death
- Obtaining information from banks and brokers
- Giving instructions to financial institutions
- Selling real estate and personal property
The executor might need to hire lawyers who practice estate law, accountants, real estate agents, and financial advisors. You should choose an executor who can work with these experts, understand their advice, and provide them with instructions in accordance with your wishes.
Choose Someone Who is Honest
Dishonesty can destroy your estate. A dishonest executor can embezzle from the estate, cheat your heirs, and engage in self-dealing. This could leave your heirs with only a sliver of the inheritance that you intended.
An executor might not intend to defraud your estate. But an executor who has financial problems, addictions, or mental issues might treat your estate as their windfall.
A court can remove an executor for waste, fraud, embezzlement, or other acts of misadministration. It’s still possible, however, that the executor could cause irreversible damage to the estate before they get caught. A suit from the estate against an executor to recover assets might not get very far if the executor has no resources. For example, an executor who has gambled away the estate’s assets might not have a way to replace the embezzled funds.
Choose Someone That Others Will Not Challenge
A surviving spouse or relative who is entitled to inherit from the estate can petition a probate judge to remove an executor. Fighting a challenge can waste the estate’s resources.
For example, suppose your brother and your spouse dislike each other and both are named in your will as heirs. If you name your brother as the executor of your estate, your spouse might challenge the appointment.
The estate will need to expend resources to defend your choice. As a result, those assets will be used to pay lawyers, rather than getting passed on to your heirs, as planned. Most importantly, a challenge will waste those resources if your brother is qualified and competent to act as the executor because a judge would not remove him for frivolous reasons.
Make Your Choice Known
Your will should explicitly name your executor to remove any doubt about your intentions. By choosing an executor who will act honestly and responsibly to follow your will, you can rest assured that your estate will be in good hands.
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