Thursday, June 16, 2005

Naming the Right Person as Your Executor

When making your Last Will and Testament, you probably put a lot of thought into who is going to receive your assets. I would argue that as much thought needs to go into who is going to administer your affairs after your death, because naming the wrong person can create a financial hardship for your beneficiaries. Understanding the roles played by the various appointees under your Will may guide you in selecting the right person for that role. This post discusses the role of the Executor and the importance of naming the right person for that position.

Your Executor is the person or entity (such as a bank or trust company) responsible for filing your Will for probate, collecting all your assets, selling property, paying debts and expenses, and filing tax returns. The Executor is NOT responsible for the investment and management of assets of the Estate (other than the continued preservation of the assets during the Estate administration) or for any trusts created under your Will, which is the responsibility of the Trustee. You can name more than one person or entity to serve as co-executors, if you choose, but you should remember that where two co-executors are named, if there is a disagreement between the executors, the estate administration may be delayed. For example, one executor may want to sell a piece of real property to provide cash for the beneficiaries. The other executor might believe the property has potential for growth in value and want to distribute the property directly to the beneficiaries and let them decide whether they want to keep it. If there is a stalemate, nothing can happen, and the property will remain both unsold and undistributed. Ultimately, the dispute might have to be taken to the probate court or to mediation to get resolution on the issue.

The Executor has complete authority over the administration of the Estate, so the person you name should be someone who is financially competent and who also understands the family dynamics. If you are married, in almost all cases the spouse is named as the Executor, but in some situations, such as where the spouse is incapacitated, lacks financial understanding or otherwise needs assistance with the management of the Estate, a child or sibling might be named as the Executor (or as a co-Executor with the spouse). If you are unmarried, a child, sibling or family friend can act as the Executor.

You should ask the following questions about the person you are thinking about naming: (1) Do I trust this person to handle the financial affairs for my beneficiaries? (2) Has this person ever had financial problems of their own? (3) Would they get along with the beneficiaries, and how would they handle conflict? (4) If I name co-executors, can the co-executors work together in harmony? (5) Will they accept advice from estate’s attorney, or will they be a loose cannon, acting without consideration for the consequences to the estate and the beneficiaries?

If you answered "no" to any of these questions, you should strongly consider naming an alternative person as the Executor.

In larger estates, banks and trust companies might be considered because of the complexity of the assets and their expertise in handling such assets. They specialize in their ability to come in and collect all the assets and administer the transfer of closely held businesses and partnership interests in a more efficient and timely manner than perhaps the family member or friend would. Banks and trust companies are also helpful in larger estates where you have no one to otherwise name that has any financial expertise to continue the administration of the estate assets. Of course, the downside to naming a bank or trust company is that they will charge for that expertise. You can expect to pay a corporate fiduciary anywhere from 1 to 3% of the overall value of the estate assets as a fee for their services as executor. Thus, where the estate is valued at $2 million, and the executor charges a 2% fee for its services, the cost to the estate would be $40,000. In some instances this is well worth it; in other cases you are best served just hiring a well-qualified attorney (which you should always have in any event) to guide you through the administration process.

One other note: it used to be that you needed to name someone that lived nearby to facilitate the administration process. With today’s technology, you can name someone who lives in another city or even another state without hindering the estate administration. Many transactions can be done through the mail, by messenger, online or over the phone.

You have probably given a lot of thought into how you are going to have your Estate assets pass at your death. Don’t put someone in charge who will derail everything after your death that you’ve worked so hard to accomplish during your lifetime.