You probably have many things you would prefer to do than to spend time talking or thinking about the death of a loved one. I get it. However, someone, at some point, may ask you to serve as the executor of their will. It’s easy to say yes, especially if you are close to the person asking. However, keep in mind that taking on this role is a big deal, no matter the size of the estate, and the question deserves thoughtful consideration before saying yes. Make sure you understand the role of the executor and the commitment it involves. Not everyone is cut out for this role, and you are not doing yourself or your loved one any favors if you accept it without believing you can do a good job.
The Role of the Executor Explained
Basically, the executor is the leader of the estate team, responsible for carrying out the wishes as stated in the will. Responsibilities include managing assets, handling paperwork, communicating with beneficiaries and creditors, settling debts and taxes, navigating legal processes like probate, and ensuring a smooth distribution of assets. The executor also is the go-to problem solver for any unexpected hiccups along the way.
It’s a big job and not one that you can complete quickly. In fact, nationally, it takes 16 months on average to settle an estate, according to EstateExec.com. Estates worth less than $10,000 often settle more quickly, while those worth more than five million can take more than three years. In Texas, where I practice, if the Decedent had a properly drafted Will it should only take from three to six months to complete probate. If it is a taxable estate ($12,920,000.00 in 2023), it might take longer. In that case, the executor needs to keep the estate open until a federal estate tax return is filed. However, that situation is fairly rare.
What Does the Executor of a Will Do?
The specific responsibilities of the executor are many. The commitment includes, among other things:
Executors are responsible for managing and distributing the assets of the deceased according to their will. This can involve dealing with real estate, investments, bank accounts, and personal belongings.
Debt and Creditors
Executors must identify and pay off any outstanding debts and creditors of the deceased before distributing assets to beneficiaries.
The probate process can be time-consuming and involves legal procedures to validate the will, which might include court appearances and paperwork.
Disputes among Beneficiaries
Family dynamics can lead to disagreements among beneficiaries regarding asset distribution, which can put the executor in a difficult position.
Executors must file the deceased person’s final tax return and potentially manage estate taxes. Tax laws can be complex and may require expert advice.
In some cases, assets like real estate or valuable possessions may need to be sold to cover debts or distribute assets among beneficiaries.
How is the Executor Chosen?
Choosing an Executor is a critical decision in estate planning, but it’s sometimes difficult to identify the right person to serve. These days, very few families have three or more generations living in the same town. Often families are scattered across the state, spread across the country, or stretched out around the world. Those with multiple children or siblings sometimes delay or avoid appointing one person in case that is perceived as showing favoritism. And then some have no close family members on whom they can depend, often called solo agers.
So, why and how people choose the executor for their will varies widely depending on individual circumstances and relationships. If someone asks you to help in this capacity, their decision likely (hopefully) hinges on factors like trustworthiness, familiarity with their wishes, organization, availability, financial literacy, and communication skills. However, that doesn’t mean you are obligated to accept. Think about the decision very carefully before you agree to serve.
Reasons You May Not Want to Accept the Role of Executor
An individual must choose the right person as the executor of their will. Hopefully, your loved one thought long at hard about the decision before they asked you. They may truly believe you are the best fit for the job. However, that doesn’t mean you have to say yes. And it’s certainly not a good idea to agree just to avoid hurt feelings. The responsibilities are too important. Here are some reasons you may not want to accept the role of executor.
Serving as an executor can be time-consuming, particularly if the estate is complex or if legal disputes arise.
Legal and Financial Responsibilities
Executors have a fiduciary duty to act in the best interests of the estate and beneficiaries, which comes with legal and financial responsibilities. Mistakes can lead to personal liability.
Dealing with a loved one’s estate shortly after their passing can be emotionally overwhelming, especially if the executor is also grieving.
If the estate is complicated, involving various types of assets, debts, or beneficiaries, managing it can be challenging, especially for individuals without legal or financial expertise.
Family conflicts might arise during the distribution of assets, potentially straining relationships among surviving family members.
Executors can be held liable for errors or mismanagement of the estate, leading to legal and financial consequences.
If the executor lives far from the deceased’s location, managing the estate’s affairs can become logistically challenging.
Lack of Knowledge
Executors might not have the necessary legal or financial knowledge to handle the tasks involved.
Taking on the role of executor can limit personal time and commitments, potentially impacting work and family life.
Carefully consider all the implications before accepting the role of executor. If you are not comfortable or equipped to handle the responsibilities, you might consider suggesting an alternative executor or seeking professional assistance. Consulting an Elder Law attorney can provide valuable guidance in such situations.
Reasons to Say Yes to Be Executor for a Loved One
While there are various reasons you may not want to accept the executor role, there are also reasons to accept. For example, this job allows you to ensure your loved one’s wishes are carried out exactly as they intended, helping to preserve their legacy and values. In addition, acting as the executor can be a way to show your deep love and respect for the deceased, as you’re taking on the task of ensuring their affairs are settled with care. Some people say it provides closure for them, and others find it’s a way to stay connected to their loved ones. Ultimately, serving as executor is a final act of service to the individual, a way of being there for them in their absence.
Serving as the executor of a loved one’s Will is a meaningful responsibility. However, before accepting the role, it’s important to consider your abilities, availability, and emotional readiness. If you’re unsure, seeking advice from legal professionals and close family members can help you make an informed decision.
What About Having a Co-Executor to Decrease the Workload?
Good question. It makes sense that if two people share the job of executor, the total amount of work would be less overwhelming. However, I generally recommend that only one person serves as the executor. What if you don’t both agree on how things should be handled? What if you don’t get along in general? Also, logistically, with two co-executors instead of one person in the role, there are two signatures required on documents instead of one, which can delay things and become cumbersome. However, it is a good idea for your loved one to designate a contingency executor to take over in the event you accept the role, and then later find you cannot serve.
Can You Step Down After Accepting the Role of Executor?
Yes, you can generally choose to step down from the role of executor if you were initially nominated to serve as one. However, the process of stepping down can vary depending on the laws in your jurisdiction and the stage of the probate process. Here’s a general overview:
Before Acceptance: If you haven’t yet accepted the role of executor, you can usually decline without significant legal complications. You should communicate your decision to the relevant parties, such as family members or the court, and they can make alternate arrangements.
After Acceptance, But Before Beginning the Process: If you’ve accepted the role but haven’t started the executor duties yet, you might need to formally renounce the position. Check the legal requirements in your jurisdiction, which could involve submitting a written statement to the court explaining your decision.
After Beginning the Process: If you’ve started the executor duties and then decide to step down, the process can be more complex. You might need to seek court approval to resign, especially if beneficiaries, creditors, or the court have relied on you to handle certain tasks. The court might appoint a replacement executor.
Keep in mind that stepping down as an executor can have legal and financial implications, especially if it causes delays or issues with the administration of the estate. It’s essential to consult an attorney before deciding to step down. If you’re feeling overwhelmed by the responsibilities of being an executor, seeking legal advice early on is a good idea to explore your options and make informed choices.
Why Hire an Elder Law Attorney to Help?
The decision to serve as an estate’s executor is a personal one. Do you have the time, skills, and temperament to effectively handle the responsibilities? If you have questions about what it means to become an executor if asked, an Elder Law Attorney is a great resource. They can help you determine if you are equipped to handle the responsibility.
In the event you already agreed to serve as the executor for a loved one, working with an Elder Law attorney can provide great peace of mind and confidence. Most states do not require you to do so, but it makes sense under some circumstances to get the support of an experienced attorney. This could prove particularly helpful if the players involved do not get along or if you believe someone may challenge either the estate or your actions. Additionally, executors can be held liable if something goes wrong. A knowledgeable attorney can guide you through the process and ensure all is done correctly.
Elder Law Attorneys have experience in many other legal matters related to the elderly population as well. They provide valuable advice and guidance to ensure that older individuals and their families are well-protected, and their rights are upheld. The areas in which elder law attorneys are well-versed include estate planning, long-term care planning, Medicaid and Medicare, guardianship and conservatorship, elder abuse, social security, probate, and healthcare directives.
The National Elder Law Foundation is accredited by the American Bar Association to certify practitioners of Elder Law. Attorneys who earn this esteemed certification use the designation CELA (Certified Elder Law Attorney). To find a Certified Elder Law Attorney near you, search at GetElderLaw.com.
About the Author: John McNair, CELA
John McNair has practiced law in Texas for over 35 years. After building a successful Estate Planning practice in the Dallas area, John applied his legal and financial expertise to clients in need of healthcare, focusing on Medicaid Planning, VA Pension Qualification, and other Elder Law issues. In 2016, he earned the National Elder Law Foundation’s esteemed Certified Elder Law Attorney designation.
John earned a Master of Tax Law degree from SMU and his Doctor of Jurisprudence degree from the University of Arkansas. He is board-certified by the State of Texas in Tax Law and Estate Planning and Probate and is also a Certified Public Accountant (CPA). John takes a personal interest in helping clients make their goals a reality by protecting their assets for future needs and preserving their legacy for future generations.