Being named as the executor of an estate is both an honor and a significant responsibility. An executor plays a vital role in ensuring that the wishes of the deceased are carried out and the assets are properly distributed—a crucial guardian of the estate.
Here we will explore the definition of an executor, discuss the process of appointment, emphasize the significance of selecting a responsible and trustworthy executor, and shed light on common questions surrounding this important position.
As an attorney practicing in estate planning and administration, I am committed to providing comprehensive and personalized legal services to individuals in the great Buckeye State of Ohio. My passion for this area of law stems from a genuine desire to help others secure their futures and protect their loved ones. With each client, I strive to establish a strong and trusting relationship, ensuring that their unique needs and goals are at the forefront of every decision.
Now that you have a glimpse into my approach as an attorney, let’s explore the role of an executor in estate planning and administration.
In This Post:
Definition Of An Executor Of An Estate Plan
The formal definition of an executor in regard to law is a person named in a decedent’s [or testator’s] will to carry out the provisions of that will.
Law. a person named in a decedent’s will to carry out the provisions of that will.dictionary.com
This is different from an estate administrator. An administrator is a person appointed by the court to manage the assets and liabilities of an intestate decedent.
A testator is a person who has made a will or a person who dies leaving a will. When you die “intestate” it means that you died without a will. When you die “testate” it means that you died with a will.
So, an executor is a person who carries out a will that is testate and declares the executor. An administrator manages the estate of a person who died intestate.
Who Can Be An Executor Of An Estate?
The executor of a will can be anyone of the testator’s choosing, within a few reasonable guidelines:
- They must be 18 years of age or older
- They must be a citizen of the United States
- They can be anyone you know, they do not have to be a family member
In Ohio, if the nominated executor lives out of state, the Probate court will likely (almost always) require the executor to post bond. Meaning they have to find a bonding company that will ensure twice the value of the estate. There’s a premium the estate pays for the bond. For example, a $150,000 estate may have a $500 bond premium. Those numbers are not exact. They will change based on information like criminal and financial background and the value of the estate.
Every county probate court is different, but generally, a court does not require a background check of an executor. However, if the application to be appointed as executor is contested, those are things the person contesting could use against the nominated executor.
How Is An Executor Appointed?
When an individual creates their will, they have the opportunity to nominate someone as the executor. This nomination can be anyone of their choosing. Upon the individual’s death, the will undergoes the probate process in the probate court. The court reviews the nominated person’s application for authority to administer an estate. Then, if there are no other applicants seeking to be an administrator or competing with the nominated executor, the court typically appoints the nominated person as the executor of the will.
When a person dies “intestate” (without a will), or if the nominated executor is unable to fulfill their role due to circumstances such as passing away or being ineligible (ie. being in jail), any individual can apply to administer the estate. If appointed by the court, they assume the title of an administrator rather than an executor. While both an executor and an administrator carry out similar functions, the executor is typically the person nominated in the will and appointed by the court. On the other hand, an administrator assumes the role when there is no will or when the nominated executor is unable to fulfill their duties for any reason.
Importance Of Choosing A Responsible And Trustworthy Executor
When thinking about the person to nominate as executor for your last will and testament, it is crucial to consider someone with excellent organizational skills. The process involves a lot of paperwork and you want to be sure that person can handle it effectively.
You will want someone who possesses a strong sense of ethics and dependability. Those qualities help promote trust so that both you and your beneficiaries can have confidence in the executor’s decisions. This is especially true when dealing with multiple beneficiaries or potential conflicts among them. Opting for an executor who can maintain fairness and impartiality while understanding your wishes and intentions is highly valuable.
While not essential, it does help if the person is financially savvy.
Moreover, an executor can always hire the assistance of professionals such as an attorney or accountant, so having good judgment in choosing individuals that can assist them is a good trait for your executor to have.
Can An Executor Be A Beneficiary?
Yes, an executor can indeed be a beneficiary of the estate. However, if there is any concern regarding potential conflicts between beneficiaries or between the executor and other beneficiaries, I suggest appointing a third-party executor who is not named in the will.
Understandably, this may not be an option for everyone, so yes, the executor can also be a beneficiary. I recommend that they maintain meticulous records and make sure that they do not make any unauthorized withdrawals. It is important for them to obtain full fair market value for any assets they choose to sell. By adhering to these practices, the executor can uphold transparency and fairness throughout the management of the estate.
What if there is no executor named in the will?
It is highly unlikely to have a last will and testament with no executor nominated. There could be a situation where the executor who was nominated in the will is unable to perform the duties of the role. This could be due to death, disease, physical or mental ailment, being in jail, or other circumstances. In such a case, where there is no alternate available, anyone can apply to be an administrator of the estate. They would go through the same process, but instead of being named an executor, the title would be an administrator.
Understanding the role of an executor in estate planning is important for ensuring a smooth and efficient administration of a loved one’s estate after passing. If you have any questions or need assistance with estate planning or estate administration, don’t hesitate to reach out. Visit my contact page today to schedule a consultation and gain peace of mind knowing your affairs are in capable hands.