This is the fourth installment in our blog series on Choosing the Right Fiduciary, discussing how to select the best executors for your will and asset distribution, among other things.
Many people have the impression that being chosen as the executor is being chosen as the anointed one, rather than viewing it as the job that it actually is. According to Webster’s, an executor is “a person or institution appointed by a testator [that is, the person making the will] to execute a will.” This sounds pretty straightforward. In reality, an executor’s duties can be complicated. The actions of executors are governed by extensive state law and are overseen by various government authorities. Below are just a few of their obligations:
- qualifying before the circuit court probate division
- gathering assets of the deceased person, including tangible personal property (things you can touch or move) and intangible property (accounts, etc.)
- locating and notifying heirs and/or beneficiaries
- filing an inventory with the Commissioner of Accounts detailing every asset of the deceased person’s estate
- keeping detailed records of income and expenses of the estate (including paying final debts and taxes)
- filing accountings with the Commissioner of Accounts showing income received, expenses paid, and distributions made to beneficiaries
- filing the decedent’s final tax return (and any prior years the decedent failed to file)
- filing the estate’s tax return
Executors can be exposed to personal liability if they make mistakes during the course of estate administration, and can even be sent to jail for failing to fulfill their responsibilities. It is not a task to be assigned or undertaken lightly. Many people who have experience as executors are less than eager to go through it again, so it is extremely important to use care in choosing the best person for the job. However, with proper planning, it is possible to create a smooth process for your executor and even minimize his or her obligations.
The best choice for an executor will be scrupulous, organized, and tactful in moderating potential conflict between heirs. Many executors struggle with the reporting requirements to the Commissioner of Accounts, so it can also be helpful to name someone with financial experience and/or familiarity with your assets. Your executor will have complete control over your “probate” estate (some assets pass outside probate by beneficiary designation, deed, or title – these assets are not subject to your executor’s control). This creates an opportunity for theft and can also create tension between your named executor and any beneficiaries of your estate who are not serving as co-executors. Another challenge is that out-of-state executors are often required to post a bond with the Circuit Court, an expense that must be paid out of pocket by the executor (although he or she can be reimbursed once the estate is open). In order to qualify for a bond, the executor must have good credit and a clean financial record. It is possible to name more than one person to serve together as co-executors, so naming a professional and/or Virginia resident to serve as a co-executor is one way to mitigate these concerns.
Making a strong choice of executor is a major step toward a smooth administration process, but you should also provide clear instructions for your executor about where to find your will and assets, particularly when you no longer have paper statements. Remember that your named executor is under no obligation to accept, so the more orderly your affairs are, the more likely it is that your desired executor will take on the responsibility. If chosen correctly, the executor will understand exactly what they are getting into, with no illusions of glory or prestige, leading to a greater likelihood of acceptance and a smoother administration process. Contact us for more information about wills, executors, and creating an orderly estate plan.