Executor: How to Select an Executor

Lawyer's Job is to Facilitate Decision

Selecting an executor causes angst for many clients. Spouses, partners, adult children, and other family members generally are at the top of the list. Many attributes contribute to the success of a probate of a will. One attribute stands out for most-“trustworthiness.” The executor can always hire paid professionals as a bank.

A client usually arrives at a selection in the planning process realizing a court would otherwise decide. Since an executor may decline to serve, or unwilling to serve to due illness or other reasons, it is prudent to have a pool of several successor executors to serve in succession, or jointly.

Spouse as Successor Executor

The surviving spouse is the usual choice to serve as a executor. The spouse may be best informed about assets to be administered. In addition, the spouse is most knowledgably about discretionary decisions to be made if the settlor is incapacitated. Marital harmony also plays a factor for most. However, the executor responsibilities may be overwhelming for a grieving spouse. Conflicts may also arise in second marriage situations where the fiduciary is called upon to make decisions regarding the administration and distribution of family assets to the fiduciary’s and the decedent spouse’s children.

Remember that irrespective of a valid last will and testament, the surviving spouse may elect to receive one-third of the augmented estate if the decedent is survived by children or their descendants. The augment share increases to one-half if the decedent is not survived by children or their descendants. The surviving spouse is also entitled to interest on the amount to which he or she is entitled from the date of the decedent’s death until the date of satisfaction of the elective share.

Professional and Corporate Trustee

Accountants are attractive potential executors. The client often has a preexisting professional relations and each professional understands the rigors of fiduciary duties. A group practice permits for continuation of the fiduciary status in the vent of disability or death of the professional.

Financial institutions trust departments offer perpetual lives. Trust officers will meet with counsel and client. Typically each financial institution has standard language for inclusion in the executor powers. Professional and corporate trustee may be an attractive alternative where family members do not have the background necessary to complete the administrative requirements of the position.

The advantages of professional or corporate executors over individual trusts are fiduciary experience in probate rather than emotional interest, and financial were to all to pay for breach of fiduciary duties. 

Disadvantages include turnover among trust officers and tendency to favor residuary beneficiaries;also instability of some banks after the 2008 stock market dive.
Multiple Executors

A rule of thumb is to consider having at least 2 successor executors if a single executor is serving under certain circumstances, generally for control [such as trust for adult child with addictions]. Provide the last successor executor is not authorized to appoint a successor executor; the qualified beneficiary appoints a executor  or a majority of the beneficiaries appoint a executor.

The last will and testament should expressly provide that any successor executor is not liable for any acts or omissions of any predecessor executor. Most trust companies that will also serve a executor require this language and also a provision that states the successor is under no duty to ascertain whether any predecessor has properly carried out its duties. An alternative is to provide a court of competent jurisdiction will appoint the executor when the nominated executor is viewed by the Court as not trustworthy. 

A single executor can make prompt and decisive decisions.With some family dynamics, the client desire several executors to serve at the same time. Co-executors provide a check and balance in decisions making. The location of co-executor in different cities is not a disqualifier with modern communications. Also, one executor can delegate to the other authority to act on its behalf. The co-executor has a fiduciary responsibility to participate in executor’s functions.

The disadvantage of co-executors is that decision making could be paralyzed with disagreement. With two executor, court guidance may be sought. This is avoidable by the executor provisions in the trust vesting one co-fiduciary with the controlling vote in the event of a deadlock. Counsel must also consider adverse estate, gift, or income tax to the controlling fiduciary.

With more than two executors, a majority of executor rule absent different terms in the of the last will and testament, controls decisions about the last will and testament. 

Consider whether your executor will be entitled to reasonable compensation and reimbursement of expenses.