When drafting a will, it is crucial that you name an Executor. An Executor is a personal representative of your estate. The primary responsibilities of an Executor include probating your will, collecting any of your assets, protecting your property until any debts and taxes have been paid, and transferring what is left of your estate to those who are entitled to it. An Executor’s job in administering your estate can take a prolonged period of time, ranging from months to years. Even if someone is willing to wrap up an estate for you, you should check your state’s laws to see if they are qualified to be an Executor. Each state has its own rules regarding who may serve as an Executor.
Who Can Serve as an Executor of an Estate? Basic Requirements
In general, anyone can serve as an Executor unless:
- They are under the age of 18 (in some states, minimum age is 21)
- They have a felony conviction
- They are not a U.S. resident, or
- They have been ruled debilitated by a court of law
Some states are lenient regarding these exceptions. For example, in Oregon, one must disclose any felony convictions to a judge but that criminal status does not immediately bar them from becoming an Executor. However, a judge may disqualify them if the facts of their conviction show that they are irresponsible with finances.
When appointing your Executor, it is important to consider the person’s character. It is best to pick someone who is responsible with money and has good communication skills as they will be communicating to judges, lawyers, and your loved ones.
Special Requirements for New York Executors
In addition to the previously mentioned requirements, a NY Surrogate’s Court also has the following exceptions:
- Substance abuse problems
- Improvidence (tendency to act rashly)
- Deemed “Unfit” according to the court
- Unable to read and write in English
Florida is the only state that requires an Executor to be a relative or spouse of the deceased, or the spouse of a qualified Executor. Other states do not require the Executor to be related or even a resident of the state where the probate court is located.
If the Executor lives out of the state, they may have some extra steps that state residents don’t normally have. This is because an Executor will have to carry out daily tasks, most likely in official offices within the state. It will be best if your Executor can go to physical locations and have physical copies instead of interacting with lawyers, judges, and other institutions over the phone. A good number of states enforce different requirements on out-of-state Executors, even if the Executor originally lived in the state but moves out of the state before the case is finished.
Some of the different requirements for out-of-state Executors include:
- Posting a bond: A bond is similar to insurance which protects beneficiaries in case the Executor mistreats estate assets. Even if you do not state this requirement in your will, a court may still dictate that the Executor post a bond anyways in order to protect the beneficiaries.
- Appointing an in-state agent: Certain states will assert that the Executor designates someone who lives in the state to be an in-state “agent.” This agent will be authorized to receive legal documents on behalf of the Executor.
- Appointing a co–Executor or administrator: If the Executor is out of state, they may need to designate someone who lives in the state as a joint Executor.
New York Restrictions on Out-of-State Executors
New York does not enforce different requirements on out-of-state Executors, however, that does not mean it is a good idea to assign someone living far away. Your Executor may have to handle daily matters for an extended period of time.
Once the Executor has met the basic requirements, they will have to file documents to show that they accept the job as an Executor and agree to be subjected to the court’s jurisdiction. They may also need to show that they have met any other requirements deemed necessary by the court.
The Person You Named in the Will Can’t Serve
If the person named as the Executor is deemed ineligible according to state law, or they decline to serve, the alternate will be next. However, if the will does not state an alternate Executor, or the alternate also cannot serve, then the state will determine what happens. Each state has its own arrangement for the court to consider.
Though it varies from state to state, most states will advise judges to assign an Executor in this order:
- Surviving spouse
- Another beneficiary in the will
- A creditor
If no willing heirs or creditors exist, then the court can hire someone who is commonly known as the “public administrator.”
Naming an Executor of an Estate is not an easy matter. You should always first consult loved ones about the steps you are willing to take in planning an estate. Then, you should discuss who you trust to name as Executor and the extent to which they will be allowed to administer the estate. You must be confident that this person qualifies under the terms of good will, is free of felony convictions, and can wisely take charge of asset transactions. It is best to obtain aid from an experienced estate planning attorney who will aid in the planning of your estate administration and will be available to answer all of your questions.
If you need help deciding on an appropriate Executor, please contact the Law Office of Inna Fershteyn at (718) 333-2394 for all of your estate planning needs.