Who should be your executor? As Beck, Lenox & Stolzer Estate Planning and Elder Law knows, most people mistakenly believe they must name their eldest child as their executor, the person in charge of administering their estate. According to the article “Eldest child, best friend, C.P.A.—Who should you put in charge of your estate?” from Coeur d’Alene/Post Falls Press, even people who understand they are not legally required to name their eldest child still think their oldest child is supposed to be their executor.
This may have been a social norm way back when. However, those days are gone. Here is what you should consider when determining who you want to be in charge of your estate.
First, what estate planning documents does the executor need to deal with? An executor is primarily concerned with your Last Will and Testament. This document states what you want to happen to your possessions and assets when you die. It also includes your choice of executor.
Not everyone has a trust. However, you’ll likely rely on a trust if you have assets you don’t want to go through probate. The instructions in the trust have nothing to do with the will. The trustee is in charge of following the directions in the trust, which spells out exactly what you want to happen with any assets owned by the trust.
Who should be your executor vs. who should be your trustee? Your executor and trustee can be the same person. However, they don’t have to be. They need to be someone in whom you have a high degree of confidence- someone capable, self-starting, organized and able to navigate the relationships of the other family members and beneficiaries of your estate.
While your will and trust will have specific language, there are also many things an executor and trustee will need to make discretionary decisions on. For instance, if your executor sells your home to distribute proceeds to named beneficiaries, they’ll decide which realtor to use, what the listing price should be, what offers to consider, which offer to accept, what terms of acceptance should include, etc.
You’ll also need to be confident that the person you name will honor your wishes and do their best to achieve the desired outcomes for the benefit of your heirs. If the executor/trustee is also a beneficiary, they must understand their fiduciary responsibilities. They are responsible for putting the estate and not their own interests first. Past behavior is a good indicator of this.
They’ll also need to be highly organized and able to handle duties without procrastinating. If they are not, they may decide to retain an estate planning attorney to be organized and manage the details. There’s nothing wrong with doing this. It may be impossible for a layperson to know precisely how to manage an estate and probate in highly complex estates.
Consider all of the people who have an interest in your estate or legal rights to be made aware of its administration. They may include children, stepchildren, non-family member beneficiaries, charities, etc. Your executor may need to deal with all of them.
Finally, be realistic about who you select as an executor and trustee. If they need to work together, do they get along? If you know they haven’t seen eye-to-eye on anything since fifth grade, it’s not likely to change because you’ve given them this responsibility. An estate planning attorney may be a better alternative to avoid family feuds or long-standing battles erupting over your estate.
If you have concerns about who should be your executor, you are invited to schedule a phone consultation at no charge with one of our Beck & Lenox attorneys. Schedule here. Current clients should call our office directly.
Reference: Coeur d’Alene/Post Falls Press (Aug. 6, 2023) “Eldest child, best friend, C.P.A.—Who should you put in charge of your estate?”
