For many people, choosing an executor for their estate means asking a spouse, adult child, or close friend or relative to take on an important responsibility after they’ve died. However, a friend or family member isn’t always the best person to serve as executor — and in some cases, the person you ask may not want to take on the role because of how complex and time-consuming it can be.
If you can’t seem to find an estate executor, there are several alternative routes you can take. Here’s what you can do if everyone you ask refuses to take on the responsibilities of being your executor.
What is an executor?
When someone creates their last Will and testament, they typically appoint a person to carry out their wishes when they die. This person becomes the executor of the Will. An executor is typically appointed by the testator. If there is no will, referred to as “dying intestate,” then a friend or family member (and even a creditor if no one else steps up) can seek to be appointed by the probate court as a personal administrator of the estate. The roles and responsibilities of an executor and personal administrator are the same; only their titles are different for purposes of seeking appointment and qualification.
Executors are responsible for managing assets and fulfilling the final wishes of the deceased individual. During the testator’s lifetime, it may be prudent to discuss with your chosen executor who you have named as beneficiaries on any assets outside of the Will, such as naming a pay-on-death beneficiary on life insurance, retirement, or a bank accounts; and those assets which you expect to require probate.
The key here is that, if assets pass through your Will, then those are probate assets. If they don’t pass through your Will, then they are non-probate assets. Such a discussion aids in a smoother transition at your death, and avoids your Executor listing the assets as “probate” assets that are, in fact, not probate assets on the forms he or she files with the probate court.
What are the duties of an executor?
There can be a lot of responsibilities that come with being an executor, however, there are attorneys that can be of assistance along the way. An executor should have access to, and copies of, any important documents, including the Will.
The executor should be familiar with all names, addresses and phone numbers of the beneficiaries identified in the Will and have a good sense of who they are in order to carry out the testator’s wishes accurately. They’ll need to make sure the testator’s debts are paid off before they can distribute assets to beneficiaries, so they will also need access to a list of any financial accounts and creditors the testator may have.
Why might someone refuse to be an executor?
There are many reasons why a person may turn down the role of executor. Some of the most common include:
- Disagreements between co-executors. In some cases, there may be more than one executor appointed by the testator. If the co-executors cannot agree on key decisions, the order of arrangements, or their responsibilities, they may decide to back out.
- Family tension. Part of the will may include distributing inheritances or allocating assets to members of the family. The executor may choose to leave their responsibilities if they face backlash from family who don’t receive things in the will or don’t get as much as another person.
- Amount of responsibilities. The job of being an executor can take a lot of time and effort that most people are not prepared for. There are certain things an executor must do before others, such as ensuring all debts are paid off before distributing inheritances and other estates. The appointed executor may not feel comfortable or may not have the time to carry out these responsibilities.
For this reason, it’s a good idea to have a backup executor in mind in case your primary choice backs out.
Options if you can’t find an executor
The process of finding an executor may not always be an easy one. If relatives and friends refuse the role when you ask, here are a few other options to explore.
- Ask your attorney or CPA or Certified Financial Planner. An experienced financial or legal professional can be an excellent choice to serve as an executor, as they have intimate knowledge of your finances and/or estate plans. This type of professional is also more likely to be familiar with the probate process and can ensure everything runs smoothly.
- Name a local financial institution or trust company. Financial institutions and trust companies can administer estates in Virginia. A corporation is also able to act as an estate executor. Keep in mind, however, that a corporate executor must be authorized to do business in Virginia to serve in this role.
- But – Before You Sign Your Will – Learn more about local Probate Rules first before naming someone who is not a beneficiary to serve as executor. Failing to name the same people who are your beneficiaries (like your spouse or children) to also serve as Executor(s) of your Will can result is much more substantial expenses for your estate. When the same persons who are beneficiaries of an estate are also executors, there will have far less paperwork burdens than someone who is not a named beneficiary. This is especially true when leaving your entire estate to your spouse or children. Consulting with an experienced probate attorney about this aspect of estate planning, before you die and before you sign a Will, is extremely important.
Your spouse, children, or other family members who you name does not need to consent to you naming them in your Will, and you should always reassure them that, after your death, they can work with an experienced probate attorney to help them step-by-step with advising, educating, and, if needed, handling the probate process. This should allay their reluctance to be appointed to serve in this role.
If you are looking for help finding an executor or need legal guidance regarding your current Will, preparing a new Will, or understanding the Probate Process in Virginia, contact the Law Office of Patricia E. Tichenor to discuss your concerns and schedule a consultation.