When designing your Will, one of the most important, but oft overlooked decisions to be made involves choosing your Executor(s). He or she has a difficult, important role to play, so great care should be taken in choosing who you wish to fill that role. Your Executor should be someone you trust, not only with honoring your last wishes, but also with completing the tasks you will be asking of them.
What does an Executor do, exactly?
An Executor is tasked with “executing” your Will. That task often involves things like bringing your Will to Court, collecting and accounting for all of your assets, recording and paying your final debts, selling certain property, and dividing and dispersing your things according to your Will. The Executor acts as your agent by putting your Will into action. Executors are bound by the limits of your Will, their fiduciary duties, and the Law. An Executor must act in the best interests of your beneficiaries, but they have a great deal of latitude in doing so. The more detail you can give them in your Will, the more you limit that latitude, but also the more guidance you provide for your Executor in carrying out their duties.
Who cannot be an Executor?
Convicted Felons cannot serve as Executors unless they have been pardoned. Incapacitated persons cannot serve as Executors, either. Incapacity generally refers to mental incapacity, not physical disability. Someone who is not a resident of Texas cannot serve as Executor unless they appoint a resident of Texas to act as an agent to receive service of process and file that appointment with the court.
Why not just appoint the person closest to you?
Far too often people simply appoint the person closest to them to serve as their Executor without considering the state that person will likely be in after your passing. An Executor will need to visit banks, the court, lawyers, brokerages, and any number of other places in fulfilling their duties. If your spouse is housebound or disabled, asking them to travel all over town for several weeks may not be the best idea. At each of these places your Executor is going to need to explain, yet again, that you have passed, and possibly describe the circumstances of your passing. The person closest to you may not be the person you want to burden with that unfortunate task. The Executor is going to need to keep detailed records of everything they do on your behalf, such as all the property they collect, the debts they pay, and the property they disperse. That could be a lot to ask of someone who is still in the process of grieving your death.
Who should you choose?
You should choose someone you trust, yes, but also someone who is capable of delivering the bad news over and over again, who has the time and means to travel all over town efficiently, and who is detail oriented enough to care for your final wishes accurately. That may indeed be your spouse, but could also be a child, sibling, in-law, friend, pastor, neighbor, lawyer, or other confidant. Be sure to verify that the person you choose is not a convicted felon (you may be surprised) and that they are willing to serve.
How many Executors should you choose?
Be sure to choose multiple Executors. Ideally, I like to list 3 potential Executors. You can choose to make multiple people co-Executors (so that they serve at the same time to share the burdens), or list them in order (so that if the first is unable or unwilling to serve, the second takes over, and so on). Executors often need to make decisions about what bills to pay when, whether to refinance property, or how to split property. Having co-Executors serve simultaneously can lead to friction in making those decisions. On the other hand, having co-Executors can split the burdens discussed above between multiple people instead of laying them all on just one.
Who can help you decide?
Choosing your Executors can be a difficult decision, but one which should be approached with care. If you have questions about who should be your Executor, or any other questions about your Will, reach out to us at Cook Nguyen & Ressler so we can help and guide you.