How to Choose Your Executor
Janice resides in New York City, has a gross estate of $6,000,000, wants to retain an attorney to draft her will, and needs to figure out who her executor should be. Janice is a widow with three children, and she intends to leave all of her property to her children and her two sisters. However, she is having difficulty deciding who to name as her executor and successor executor. Should she name one or more of her children? One of her sisters? A friend? Her attorney? Who should Janice choose?
Who Can Act as Your Executor: Basic Requirements
Almost anyone can serve as the executor of your Will as long as he or she is eighteen (18) years of age or older, possesses the competence to act as your executor, is not a non-resident alien, and is not a convicted felon. These rules also apply to any successor executors named in a testator’s will.
Can a non-resident alien serve as an Executor?
A non-resident alien is someone who is neither an American citizen, nor a resident of the United States. In certain circumstances a non-resident alien can serve as an executor. A non resident alien can serve as an Executor only if you also name a New York resident to act as co-executor with the non-resident.
A United States citizen that resides outside of New York can act as your sole executor, but it is recommended that the testator either name an individual that lives in or near New York if she is naming only one executor or name a New York resident as a co-executor if the executor also wishes to name a non-New York resident. This is important because it is much easier for a local executor to travel to and from the testator’s home. The Executor may need to be present at the testator’s home in order to clean it, organize the testator’s property found in the home, and collect the assets located in the testator’s home. A local executor can also interact much more easily with the estate attorney, as he can visit the attorney’s office rather than relying completely on phones and email for communication.
Can Beneficiaries Under the Will Also Act as the Executor?
Beneficiaries under your will are allowed to serve as your executor. In fact, it is common for testators to name one or more beneficiaries as their executor/co-executors, and/or successor executors.
Can the Attorney that Drafted the Will Act as Executor?
Attorneys are also allowed to act as executors. The attorney who drafted your will (otherwise known as the “attorney-draftsperson”) is also permitted to act as your executor, provided that your attorney takes certain steps during your lifetime.
First and foremost, attorneys must disclose the following to the testator before executing her will: (a) subject to the laws prohibiting certain individuals from acting as executor, any person, including the testator’s spouse, child, friend, associate, or an attorney, can act as executor; (b) any person acting as the executor, including an attorney, is entitled to receive commissions in connection with the services rendered as executor, unless there is an agreement stating otherwise; (c) if the attorney-draftsperson (or his employee or then affiliated attorney) acts as executor without having obtain a signed acknowledgment from the testator stating that he was informed of these requirements, such attorney-draftsperson (or his employee or affiliated attorney) is entitled to only one-half of the commissions normally allowed to executors; and (d) if the attorney-draftsperson acts as executor of his client’s will, he is entitled to receive legal fees in connection with the legal services he renders for the estate.
The client must then sign an acknowledgment stating that he received disclosure of the above in the presence of at least one witness, who must be someone other than the attorney-draftsperson. If the attorney-draftsperson does not obtain this signed acknowledgment from the testator, he will only be entitled to one-half of the commissions that an executor would normally be entitled to collect.
Can I Name Multiple Executors?
The testator is also allowed to name multiple co-executors if she wishes to do so. However, naming more than one executor may create problems for the estate, the executors, and the beneficiaries, such as the executors’ failure to agree on how to administer the estate or a delay in the progress of the administration if the executors are not all available to sign certain documents or sign off on certain decisions.
For example, Janice names two of her friends, Alice and Sarah, as co-executors of her will and then dies. Alice and Sarah commence a probate proceeding, and the Court issues Letters Testamentary to them as co-executors. Alice discovers that Janice owned assets that are under the control of B Bank. Alice wishes to collect those assets, but Sarah has disappeared and B Bank will only hand over the assets if both Alice and Sarah consent. Alice learns that, since Sarah is missing, the only way B Bank will surrender the assets is if Alice obtains an order from the court directing the bank to give the assets to Alice without Sarah’s consent. Not only did this problem create a delay in the progress of the administration, but it also resulted in additional legal fees and court costs incurred in connection with this court proceeding.
Any Other Considerations?
The testator should name an executor who is trustworthy and financially responsible. The executor will have to administer the estate without improperly taking assets from the estate for her own benefit, collect all of the estate assets, timely pay the executor’s taxes and file tax returns, use estate funds to pay estate debts and other administration expenses, act in the best interests of the beneficiaries, and distribute funds to the beneficiaries in accordance with the will.
We can help you decide on the appropriate Executor.
Additional resources provided by the author
For more information, please contact probate and estate planning attorney Regina Kiperman:
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