The executor of a will plays a critical role in the days and weeks after someone passes away, ensuring that their affairs are settled according to their last wishes.
Administering a will need not be a complicated process, but with unclear or poorly worded wills or worse yet, no will at all, it may take several months to have all next of kin agree on an administrator, and get a court order to distribute the estate according the state’s own formula.
Therefore this article covers the duties of the executor, and provides actionable guidance on how to choose the best one for you.
For more information, read our article on will writing in Singapore.
What is an executor of a will?
An executor of a will is somebody explicitly named in a will or otherwise appointed by the court to administer the estate of a deceased person. You are giving this person responsibility to carry out your wishes with regards to your possessions and property.
By appointing an executor, you are appointing an agent to work on your behalf. This person must avoid conflicts that arise in terms of personal interest and those of the estate. They must therefore always seek to act in the best interest of the estate and may be called upon by the court to defend the estate against creditor claims or to file claims on other parties on behalf of the estate.
How to choose an executor for your will
Legally, you can appoint anyone aged 21 or above, that is not bankrupt and is of sound mind to be an executor of your will. There’s no rule against beneficiaries of your will being your executors. It is common for people to choose their spouse, civil partner or children to be an executor.
Ask yourself these questions when choosing an executor:
- who do you trust to follow your wishes?
- will they treat the other named beneficiaries fairly?
- are they willing to make the effort to settle your estate?
- are they well organised and good with finances?
An executor could be:
- a family member
- a trusted friend
- your husband, wife or partner
- a professional executor, such as a licensed trust company or a lawyer
It is common practice to appoint a backup executor in your will, in the case where the person you’ve named is not able or willing to carry out their duty.
Once you’ve chosen the executor you’d like to name in your will, be sure to inform them of the location where you’re storing the will, so they can locate it if and when required.
What does an executor of a will do?
An executor of a will handles tasks such as tracking down assets, paying creditors, and making sure beneficiaries named in the will receive property which they are entitled to. If it is a family member, they may choose to enlist the help of a lawyer to navigate the probate process.
Here are some of the other tasks that an executor is expected carry out:
- Make funeral arrangements
- Apply to court for a of grant probate (a court order to allow the executor to start the process of disposing of the estate)
- Locating all the relevant assets
- Paying debts and taxes on the estate
- Maintaining property until the estate is settled
- Represent the estate in court
- Distributing assets according to the will
Executors must keep accurate records of all transactions in relation to the estate, as they can be held personally responsible if they make a mistake that diminishes the estate.
An executor is considered to be a fiduciary, this is someone who is trusted to hold high ethical standards and act in the best interest of the estate.
What power does an executor of a will have?
The principle power of an executor is the right to manage and distribute your estate. An executor must be named in your will or be appointed by a court.
The power of an executor comes into effect once you have died, only then is the executor responsible for managing and distributing your estate.
To cut a long story short, choosing a capable person is a valuable decision. They are responsible for duties such as tracking down assets mentioned in the will, paying debts, and making sure named beneficiaries receive what has been left to them.
It is important that you trust the person who you nominate for this role.
But as long as you’ve carefully weighed the options, and chosen a person you trust, you can rest easy knowing that your assets and your loved ones are in safe hands.
Frequently Asked Questions
Do executors get paid?
No, executors do not get paid unless it is stated in the will or where a professional service such as a law firm has been hired to help manage the estate, this would be covered as an expense.
Executors can however be named beneficiaries to the estate.
Do executors need to hire a lawyer?
Unless explicitly mentioned in the will, it is up to the executor of the will to determine whether this, as necessary. Funds from the estate can pay for a lawyer, as this would be considered an expense to administer the estate.
Can you opt out of being an executor of a will?
The executor who you have named in your will can decline the responsibility if they are not able to carry out the necessary duties. This is why it’s important to nominate an alternate executor who can take over their duties.
If none of those you’ve nominated are able to carry out executing your will, someone in your next of kin can nominate themselves (with written permission from other family members) to the Court to act as the executor.
A trust is an inheritance instrument that allows for the timed distribution of funds after death. Most of the time, trusts are very specific with respect to who should get what and when, but the trust itself cannot make distributions. That is the role of the executor of a trust. He or she is a person who is chosen by the trust owner to facilitate the trust after the owner has died. This person typically has full responsibility for managing the trust, including making the appropriate tax and probate filings, handling distributions, and accounting for changed circumstances. Executing a trust can take years, if not decades, depending on the trust’s complexity and value.
The most basic job of the executor of the trust is to distribute the trust’s funds according to the trust’s instructions. Unlike a will, which usually stipulates a one-time distribution, a trust fund generally anticipates the slow distribution of money or assets over time. Sometimes, trust money is required to be invested in certain bonds or stocks, either pre-selected or of the executor’s choosing. Other times, the money is meant to go directly to individuals. It is common for trusts to place conditions on distribution.
A trust clause may direct that money be given to a grandchild once that child turns 18 or graduates college, or might provide a monthly payment to a child so long as she remains married or provided she and her family still live in the family home. The executor of a trust is the person responsible for making sure that payments follow the letter of the trust, and it is his or her job to make sure than any conditions are being met. This individual is required by law to follow the trust’s instructions exactly. In certain circumstances, this can make the executor of a trust a rather unpopular person.
Becoming a trust executor is something that is usually stipulated, not volunteered for. Most of the time when a person is drafting a trust instrument, he or she will ask a trustworthy relation to serve as executor. Sometimes, a family attorney or financial adviser serves as the executor. Other times, the executor is a family member, even one of the beneficiaries.
By assuming executive duty over the trust, the executor becomes what is known in law as a fiduciary. Fiduciaries are legally responsible for the just and proper management of assets. These responsibilities open the executor up to lawsuit from any beneficiary who questions the executor’s actions.
One can always decline service as the executor of a trust, and accepting should never be taken lightly. The responsibilities of executing a trust are often extensive. Managing relatives, enforcing sometimes arbitrary conditions, and properly filing complex tax and probate paperwork are all routine parts of the job. Depending on the trust size and the number of beneficiaries, the job of executor can stretch out for decades.
In smaller estates, the executor of a trust is sometimes also tasked with serving as the general estate executor, although these are different types of executors. An executor of an estate is the person who oversees all death-time distributions of property, both that which is listed in the will and that which is not. The estate executor is usually also responsible for planning final arrangements, such as a funeral service, as well as handling the legal side of the estate. Trusts usually operate separately from standard estates, but there is generally no reason why they cannot be handled together.
What are my options for choosing an executor for my will? I was considering asking one of my kids to do it, but I don’t think any of them are up for the job. What can you tell me?
Choosing an executor — the person or institution you put in charge of administering your estate and carrying out your final wishes — is one of the most important decisions you’ll make when preparing a will.
Picking the right executor can help ensure the prompt, accurate distribution of your possessions with a minimum of family friction. Some of the duties required include:
• Filing court papers to start the probate process (this is generally required by law to determine the will’s validity).
• Taking an inventory of everything in the estate.
• Using your estate’s funds to pay bills, including taxes, funeral costs, etc.
• Handling details like terminating credit cards, and notifying banks and government agencies like Social Security and the post office of the death.
• Preparing and filing final income tax returns.
• Distributing assets to the beneficiaries named in the will.
Given all the responsibility, the ideal candidate should be someone who is honest, dependable, well-organized, good with paperwork and vigilant about meeting deadlines.
Who to Choose
Most people think first of naming a family member, especially a spouse or child, as executor. If, however, you don’t have an obvious family member to choose, you may want to ask a trusted friend, but be sure to choose someone in good health or younger than you who will likely be around after you’re gone.
Also, if your executor of choice happens to live in another state, you’ll need to check your state’s law to see if it imposes any special requirements. Some states require an out-of-state executor to be a family member or a beneficiary, some require a bond to protect your heirs in case of mismanagement and some require the appointment of an in-state agent.
Also keep in mind that if the person you choose needs help settling your estate, they can always call on an expert like an attorney or tax accountant to guide them through the process, with your estate picking up the cost.
If, however, you don’t have a friend or relative you feel comfortable with, you could name a third party executor like a bank, trust company or a professional who has experience dealing with estates. If you need help locating a pro, the National Association of Estate Planners and Councils (naepc.org) and the National Academy of Elder Law Attorneys (naela.org) are great resources that provide directories on their websites to help you find someone.
Most family members and close friends (especially if they are a beneficiary) serve for free, but if you opt for a third party executor, it will cost your estate. Executor fees are set by each state and typically run anywhere from one to five percent, depending on the size of the estate.
Whoever you choose to serve as your executor, be sure you get their approval first before naming him or her in your will. And once you’ve made your choice, go over your financial details in your will with that person, and let him or her know where you keep all your important documents and financial information. This will make it easier on them after you’re gone.
You probably can come up with many things you'd rather do than spend time planning for your own death.
However, there's part of creating an estate plan that experts say deserves thoughtful consideration: choosing the individuals who will carry out the wishes in your will and who will make decisions on your behalf if you are incapacitated at any point before you die.
Basically, not everyone is cut out to serve in these important roles, experts say.
"These designations are important and should be considered very carefully, no matter the size of the estate," said Samantha Weyrauch Davis, an estate planning attorney and director with Hall Estill, a law firm in Tulsa, Oklahoma.
In basic terms, "estate" just refers to everything you own when you die: your financial accounts, real estate and possessions. An estate plan — regardless of whether your assets are massive or meager — aims to ensure your wishes are carried out at death and to provide some guardrails for other end-of-life considerations.
If you die without a will (called dying "intestate"), the courts in your state decide who gets your assets. The process is public and can become messy if would-be heirs disagree over what should be rightfully theirs. And if your children are minors but you have no will or other document designating a guardian, the courts will decide who takes care of them, as well.
Here are tips to consider for choosing the executor of your estate, as well as the individuals charged with powers of attorney for your finances and medical care before you die.
The role of executor is a big job.
This is the person in charge of everything from filing your will with the court to paying off your debts, closing accounts and making sure your remaining assets are distributed as specified in your will. (Be aware that some assets — such as retirement accounts and life insurance policies — are distributed based on the named beneficiary on the account, not what is stated in a will.)
This means, for starters, that the person needs to be trustworthy and organized. They also need to be able to juggle the job with their other life responsibilities, Davis said.
It takes nearly 16 months on average to settle an estate, according to online software provider estateexec.com. Those worth less than $10,000 settle more quickly (11 months on average), while estates worth more than $5 million take the longest to wrap up: 42 months (3.5 years).
If you're thinking about naming co-executors, make sure they would be able to work together, Davis said. And be aware that the shared duties could make the process more complicated.
"I usually recommend to clients that it's best to have one person in that role," Davis said. "There would be just one signature required instead of two [on documents], which can take longer and sometimes become cumbersome."
It's also wise to ask the person before you finalize your will if they are willing to serve as executor.
"You should discuss … your expectations," said certified financial planner Niv Persaud, founder of Transition Planning & Guidance in Atlanta. "It's a lot of responsibility, and they may turn it down."
Even if they accept, it's worth naming a contingency executor (and getting that person's OK, as well) in case the situation changes.
If you create a trust as part of your estate plan and are choosing a trustee, the same general attributes should apply. And if you struggle to identify someone in your personal life to serve as an executor or trustee, you can rely on a professional like an attorney or accountant, or a trust company (or trust department at a bank).
Married couples generally name each other as executor. In those cases, be sure to consider the backup person carefully.
Also, executors are paid a modest fee based on state law (although some individuals choose not to receive pay), Davis said. In Oklahoma, for example, the fee starts at less than 1% of assets, depending on the size of the estate.
Powers of attorney
It's worth drawing up two separate documents for powers of attorney: one for health-care decisions and the other for your finances. Many people end up naming separate individuals to serve in those roles.
For the medical side, the person with the power-of-attorney designation can make important health-care decisions when you cannot. If you create what's called a living will — which states your wishes if you are on life support or suffer from a terminal condition — this can help guide your proxy's decision-making.
As with naming an executor, you should first make sure the person would be comfortable in that position. You should also let them know your wishes in advance (i.e., a "do not resuscitate" order), Persaud said.
For financial powers of attorney, the person should have the same general characteristics as the executor. This individual would be able to act on your behalf to handle your finances (i.e., paying bills or handling other money matters) if you cannot.
"You can also decide how broad or specific the role will be," Persaud said. "For example, [the person] could access your account to pay bills but not make investment decisions."
Revisit your decisions
You generally should revisit your estate plan — even if it consists of only a will — every three to five years, said Davis of Hall Estill. If you experience a major life change before that (divorce, birth of child, major asset acquisition, etc.), it's worth reviewing sooner.
One of the most important aspects of estate planning is drafting your will—and choosing the executor of your will. The executor holds an essential role in ensuring that your assets are correctly distributed upon your passing. The person you select for this role will also need to handle other necessary tasks to close out your estate.
Estate Lawyers in California
If you are preparing to draft your will and need legal assistance, the estate planning attorneys at Galanti and Copenhaver can help. Our attorneys have many years of experience successfully handling all different aspects of estate planning. Contact our office today to learn more about what we can do to help you prepare your will and other estate planning documents.
What Are the Duties Required of the Executor of a Will?
The executor of a will is responsible for ensuring that the decedent’s last wishes are properly carried out regarding the disposition of their possessions and property. There are many things that the executor of a will must handle.
First, the executor must locate the decedent’s assets and keep them safe or properly manage them until the executor can distribute them to the beneficiaries. The executor is also responsible for locating and contacting the beneficiaries of the will. The beneficiaries are the people the decedent has named in the will as the recipient of their assets.
Another responsibility the executor has is filing the will in the correct probate court. In some cases, the will may not be required to pass through probate, but typically, it must still be filed with the court.
The executor of a will also has the responsibility to pay off legitimate debts and creditors. It is their job to notify all known creditors of the death of the individual and find out how the creditors want to proceed. It is generally a good idea for the executor to set up an independent bank account to manage the deceased individual’s assets in order to keep the estate funds separate from their own.
Additionally, the executor is responsible for wrapping up other matters on behalf of the decedent. These include canceling credit cards, advising the bank of the decedent’s death, contacting the Social Security Administration, if applicable.
Another responsibility that the executor has is to pay the decedent’s final income taxes for the last year that they were alive. Finally, the executor must see through the distribution of property and assets to the designated beneficiaries.
What Should I Consider When Choosing an Executor for My Will?
Since the executor of a will has so many tasks and responsibilities to handle, it is crucial for anyone drafting a will to make sure that they choose the right person for the job. It is not a position to be taken lightly. For this reason, as you prepare to draft your will, you should consider choosing an executor who is willing and able to perform these duties and who is also familiar with you and your circumstances. Many people choose an immediate family member or a close friend to fulfill this role.
If you do not have an immediate family member or a close friend that you can think of who would be willing to take on this role, there are other options to consider. If you have grandchildren, one of your grandchildren may be old enough and responsible enough to take on this role. Additionally, if your close friends cannot be the executor of your will, one of their children might be able to handle the role and carry out the tasks of the executor.
Although this role can have its demands, many people are happy to help out if they are asked. It is a good idea to be open-minded and willing to reach out to individuals that you know and trust, even if they are not within your immediate family.
Other Options for the Executor of Your Will
If you do not have a friend or family member who is able to take on the job of the executor of your will, there are some other options. You can hire a third party to serve in this role. Some third-party options for an executor include an experienced estate planning attorney, a trust company, or a bank.
Compensation for the Executor of a Will
Since it takes a lot of work, time, and effort to serve as the executor of a will, common practice is to pay the executor. Even if you choose a close friend or family member to handle this role, you should still ensure that they are paid a fair amount. You can make arrangements for the executor payment to come from your estate.
Contact Your Local Estate Planning Attorney Today
At Galanti & Copenhaver, Inc. we are committed to delivering personalized legal guidance to you that is individually tailored to your unique circumstances. If you are ready to get started on creating an estate plan, contact us today at 707-867-0787 or fill out our online contact form.
Choosing the right executor is a vital part of the estate planning process. And it's no simple task—you need someone you can trust to fulfill your final wishes and who will be willing and able to take on the task of distributing assets. So how do you decide?
by Breck Murray
updated February 24, 2021 · 2 min read
It’s a vital first step to long term peace of mind: creating an estate plan. But no matter how thorough your estate plan is, choosing the right person to carry out your final wishes is essential. It can be challenging to pick an executor who can file paperwork on time and handle potentially volatile family relationships. Here are some recommendations that may help with such a weighty decision.
What Is An Executor?
An executor is the person appointed in the will to manage the estate, deal with the probate court, pay outstanding debts, collect assets, and distribute the estate according to the provisions of the will. This person in essence becomes a personal representative of the deceased. The executor is overseer, manager, distributor, and possible peacemaker in the execution of your estate plan.
What Qualities Are Important?
Family members and friends who have demonstrated that they are trustworthy, honest, conscientious, and good with people are the best candidates. The executor can always hire an accountant or lawyer if the need arises. That also requires maturity. Most states help with this by restricting service as an executor to adults 19 years of age or older and without felony convictions. Outside professional executors are easy to find; they work for a fee.
You may also want to consider where your executor lives. An executor may need to spend a significant amount of time working with the courts in the deceased’s area. If you feel that an out-of-state executor is the best choice, be sure to research your state’s requirements before taking that step.
What Else Should I Know Before I Ask Someone?
Bear in mind that you may be asking someone to commit months or even years to handling your affairs. Glen Curtis at Forbes.com reports, “This includes making a list of all bank, brokerage and retirement accounts, as well as any property the deceased owned. Additionally, an inventory of personal effects, such as collections, antiques or other valuables, must be tabulated and presented to the probate court for review.” That’s just the beginning. Honesty about the responsibility and amount of work involved in your particular plan is critical. Though it is largely a labor of love, compensating your executor may be the best way to say thank you. “Executors are not obligated to serve on your behalf and many lawyers recommend you include in your WILL that the executor can pay themselves. You should also cap the amount they are allowed to pay themselves,” says Sarah Wilson at eHow.com.
A good executor’s actions can mean the difference between an unnecessarily lengthy probate process and the timely distribution of assets. Most importantly, he or she can help provide peace of mind at a time when it’s needed the most.
Do they have the time and inclination to deal with all the paperwork? This may involve paying various bills and dealing with insurance companies, hospitals, and various other charges of a last illness, not to mention tracking down financial accounts. It may be wise to choose someone who has the time to handle this aspect of your estate.
- Have you had an in-depth conversation with the person entrusting you with the task? This may prevent problems or uncertainties that may arise after death.
- Will you be authorized to access the safe-deposit box where the will or other important papers are kept? Will you know where to locate asset information and the point of contact at the various financial institutions?
- What is the location of the safe containing valuables such as jewelry, birth certificate, passports, or keys to an automobile or home? Will you be given the passcode?
- The process of tracking down heirs and paying off debts can be long and drawn out. Do you have all the contact information you need (names, addresses, telephone numbers, etc.)?
- Moreover, read your friend’s or loved one’s will carefully in case there are any areas of ambiguity. If you genuinely don’t feel you can dedicate the time and attention to such a job, you may have to politely decline.
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U.S. Supreme Court Justice Warren Burger is famous for more than just his time on the bench. When he died in 1995, he left a 176-word will that gave no specific power to his executors. As a result, he reportedly cost his estate tens of thousands of dollars in attorney’s fees.
Judge Burger’s case shows that even law-savvy individuals can make mistakes when it comes to writing their own legal documents. But giving executors the proper power is only one piece of the puzzle. How do you choose an executor? Can anyone do it?
What makes an individual a good choice?
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Choosing an Executor For Your Will
Many people choose a spouse, sibling, child, or close friend as executor. In most cases, the job is fairly straightforward. Still, you might give special consideration to someone who is well organized and capable of handling financial matters. Someone who is respected by your heirs and a good communicator also may help make the process run smoothly.
Above all, an executor should be someone trustworthy, since this person will have a legal responsibility to manage your money, pay your debts (including taxes), and distribute your assets to your beneficiaries as outlined in your will.
When do you consider hiring a professional to be your executor?
If your estate is large or you anticipate a significant amount of court time for your executor, you might think of naming a bank, lawyer, or financial professional. These individuals will typically charge a fee, which would be paid by the estate. In some families, singling out one child or sibling as executor could be construed as favoritism, so naming an outside party may be a good alternative.
Whenever possible, choose an executor who lives near you. Court appearances, property issues, even checking mail can be simplified by proximity. Also, some states place additional restrictions on executors who live out of state, so check the laws where you live.
Keep Your Executor Informed
Whomever you choose, discuss your decision with that person. Make sure the individual understands and accepts the obligation, and is made aware of where you keep important records.
Because the person may pre-decease you – or have a change of heart about executing your wishes – it’s always a good idea to name one or two alternative executors.
Where’s the Will?
It's a lot to leave up to the law but 68% of Americans do just that – including celebrities. Here are 10 famous people who died without having a will in place.
Jimi Hendrix – one of the greatest guitar players of all time: The famed guitarist's siblings had been feuding since 2002 , when their father, Al Hendrix, died and left Jimi's sister Janie in control of the musician's $80-million estate.
Bob Marley – Jamaican singer/songwriter: After a 10 year legal battle that added up to $6 million , the Jamaican court ordered that control of Marley's estate remain with Chris Blackwell. Then in 2001, the estate passed to his widow and 10 children.
Salvatore Phillip "Sonny" Bono – entertainer turned U.S. Congressman: His wife, Mary Bono, had to go through probate court to become the executor of her husband's estate, and Cher sued the estate for unpaid alimony .
Abraham Lincoln – lawyers and the sixteenth president of the United States: His estate was eventually settled two and a half years after his death, divided equally between his widow and two children .
Martin Luther King, Jr. – civil rights leader and activist: After his death, his heirs formed a corporation to manage King’s estate, but then they fought over control of the corporation .
Barry White – soulful entertainer: Upon his death, he left behind an outdated will that left 2 ex-wives, a long-term partner, and nine children unprotected.
Stieg Larsson – Swedish author of The Girl with a Dragon Tattoo: When Stieg Larsson died intestate, his life partner, Eva Gabrielsson, who shared Stieg’s life for 32 years, was left out in the cold. Larsson’s father and brother inherited his entire estate, which includes the rights to his best-selling trilogy .
Prince – multi-talented artist: While the estate passed to six family members, In the years following Prince's death, there was a furious debate over the value of Prince's estate between the estate's administrator and the IRS.
What all these individuals have in common is that their wishes were unknown and it was left to the courts to decide what is to happen to their assets. In many cases, hard feelings and discontentment marred relationships between family members. And, oftentimes, individuals the deceased loved were left with nothing.
Has it been more than 5 years since you updated your estate plan? Would you like to bulletproof your wealth for the next generation? If you have more than $1 million saved and need help from a wealth manager, I can assist. Schedule a call to learn more today .
About the Author
Peter Newman is a Chartered Financial Advisor (CFA) and president of Peak Wealth Planning. He works with individuals nationwide that have accumulated wealth through company stock, ESOP shares, real estate, or running a business. Peter applies his unique background to help clients achieve their specific goals and enjoy peace of mind.
Peak Wealth Planning provides concierge services to meet your wealth management needs. Services include: financial planning , investment management , esop diversification , retirement income , insurance, and estate planning advice, Peak Wealth Planning is a fee-only financial advisor based in Champaign, Illinois, and Fraser, Colorado.