Woman with a headache similar to headaches from being executorChoosing the executor of your estate (sometimes called a Personal Representative depending on what state you are in) is an important decision. You are appointing them to do work on behalf of your estate, and it's work that not everyone wants to do. The Wall Street Journal recently had an article about "the messy, thankless job of an Estate Executor" that looked at some stories of people who have been involved with the estates of loved ones.

The story also demonstrates the importance of having an estate plan in place so that you choose who you want to be the executor. Without a will, your local probate court will be the one who chooses who will administer your estate. That person may not be the person you would choose and may be chosen by default based on what the laws of your state say, as opposed to the person best suited for the role.

When I work with clients, choosing their executor or personal representative is often one of the hardest choices they need to make in their estate plan. Many people know exactly who they'd like to leave their estate to (their spouse, their children, etc.), but they aren't sure who is the right person to manage the estate. The person who is chosen (whether by a will or a court) may be in for more work and family strife than they bargained for.

Nobody Wants to be the Executor

If you describe the actual role and work that will be done, very few people would sign on to be an executor. As the Wall Street Journal points out, you can end up spending far more time on the estate than you ever anticipated and for all that time, you're left with family drama and hurt feelings. One of the people interviewed for the article, Greg Kern, said there are "still some raw feelings" and he "didn't know what I was in for."

One of the challenges is that people choose executors who do not want to be the executor or others who decline to do it. Declining to be an executor is something that people do not always realize is an option, but once given to someone, they may gladly accept the option so they don't have to deal with the estate.

Who Should I Name as Executor?

When you are preparing your estate plan, one of the first things to think about is who should act as your executor. Some common guidelines to consider:

  • Make sure the person you choose is willing to do it
  • The person should be able to handle paperwork and preferably not be intimidated by the court system
  • Grief-stricken relatives do not always make the best executors
  • Picking a child may result in resentment from the other children
  • Choosing multiple executors to act at the same time can create deadlocks on issues
  • When in doubt, an impartial third party (a friend, lawyer, accountant) is a good choice

What if There's No Will?

If there's no will, then someone will need to file a petition with the local probate court to get the estate distributed, which can cost more money and take more time than if a will had been in place. The WSJ article explains a California situation where a woman died in May 2022 and her stepdaughter arranged the funeral, inventoried the estate, and was generally managing the estate. However, "under California law, other relatives were in line before her to handle the estate. As a stepchild, she also had no right to inherit." So, even though there may be a person who organically falls into the role of managing the estate, they may not legally be entitled to do so.

One very large challenge if there's no will occurs when you have children under the age of 18. In that case, if the person who died was the last remaining living parent, then the court has to determine who is best suited to be the guardian for the children and also find someone to act as a trustee to manage the money for them. The executor will need to be involved in that process as well, especially with the financial distributions, and that process can take significant time and money.

Another challenge if there's no will is that you may need to locate all of the potential heirs (people who would inherit under the law). If you aren't particularly close to the person, you may not know their family history and may need to hire third parties to create a family tree and then track down the people to see who is living and who is dead.

Need Help with Your Estate Plan?

If you don't already have an estate plan, or if you have one that needs to be updated to avoid unnecessary probate proceedings, let's schedule a Legal Strategy Session online or by calling my Edina, Minnesota office at (612) 294-6982 or my New York City office at (646) 847-3560. My office will be happy to find a convenient time for us to have a phone call to review the best options and next steps for you to work with an estate planning attorney to get your estate plan prepared.

Andrew Ayers
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I work with business and estate planning clients to craft legal solutions to protect their legacies.
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