Being named an executor or choosing the executor of a will does not imply such a person must have legal or financial expertise.
Most often a spouse, close friend or main beneficiary of a will is named as executor (or personal representative).
That makes good sense because such persons will have a good knowledge of the wishes of the deceased, details of the estate and an interest to wind up the estate without delay.
Executors need not do this all by themselves. Should they need expert help, the executor of a will can easily get assistance from a lawyer, para-legal or accountant at a negotiable fee and court officials are more than willing to explain procedures and issue relevant forms.
Note: court officials are not allowed to offer legal advice.
Many banks or financial institutions will draw up a will for their clients with themselves as executors. Unfortunately the personal relationship between banker and client has been replaced by electronic banking to a large extent, so it is quite possible that a complete stranger - albeit a competent individual - will oversee the will.
An executor's fee will definitely be payable, whereas a beneficiary as executor of a will, mostly waive any fees due.
Before naming an executor and alternate, you should confirm with them that they are willing and that they meet the requirements of your state or country: i.e. not a minor or convicted felon and a resident of your country.
Some states also have restrictions on out-of-state executors.
Important Note: Please refer to our main page for a step-by-step overview on Writing a Will.
In simple terms, it is the responsibility of the executor of a will - after probate has been granted - to handle all payments due by the estate, such as funeral expenses, debts and taxes and thereafter to distribute the remainder of the assets to the beneficiaries as specified in the will.
The executor may have to sell assets in order to raise cash for the above mentioned payments!
It is important to consider as part of your estate planning, having a payable on death account or having an insurance policy with a named beneficiary to ensure the surviving spouse and dependents have immediate funds available whilst the estate is being wound up.
It is a simple matter to make a checking or savings account a payable on death account.
Talk to your bank or financial institution to assist you in naming your beneficiary. You are still the only person with access to the funds, until the day you die.
Even if you were in a coma, the money would not become available to the beneficiary. The only way the beneficiary can have access to the funds will be by presenting a death certificate.
Although this account will not have to go through probate, the money in this account will still be calculated as part of the estate, for the purpose of taxes and duties.
Furthermore, this is also not intended as an easy vehicle to bequeath inheritances to loved ones. If there are large sums involved, you need to speak to a financial advisor or estate planning attorney for advice and to ensure it does not conflict with your wishes in your last will and testament.
If the executor of a will is not the sole beneficiary of the will, a bank account should be opened in the name of the estate and accounting of all expenses or debts and income from sales must be provided.
If someone has made an incomplete will i.e. did not name any executors or the persons named are not capable or eligible to act in that capacity, the court will appoint an administrator cum testaments annex. This is normally abbreviated to: Administrator C.T.A (meaning administrator to the will annexed).
This person may be selected by the majority of the beneficiaries, so it need not be a stranger.
If someone has been named executor but that person is unable or does not want to serve, then he/she must sign a declination. This is a legal document (sample below) that declines being appointed as executor.
The alternative or contingent person named in the will then assumes the duty. If that person also declines or no contingent was named, the court will appoint an executor.
named as the Executor in the last will and testament of
and late of this address _____________________________________
do hereby decline to serve as Executor of said will.
Signed on this ___________ day of _______________________ 20_____.
State of: ___________________________
County of: __________________________
I, ___________________________________ a notary public in and for the above state,
certify that ___________________________ whose name is signed to this
Declination as Executor,acknowledged the same before me
on this _________________ day of _______________________ 20_____.
My Commission expires __________________________________.
Signature of Notary Public
The main criteria for an executor of a will is somebody who is conscientious, trustworthy and fair, with a healthy dose of common sense! Professional help is easily available should the need arise.