New York Estate Planning & Elder Law Blog
There are plenty of fancy words in law that actually have very basic definitions. Estate planning law is no different, with plenty of legal terms that can often be hard to unpack and understand. One such term that gets thrown around a great deal in the field of estate planning is “executor.” Who is an executor? What is their role? The following information may help you understand more about an executor and their role in your estate planning.
What is an executor?
The person creating a Will, known as the testator, will name someone that will be responsible for administering the provisions of the will in compliance with the law known as the executor. Basically, an executor oversees making sure that debts are paid and remaining assets are distributed per the testator’s wishes. Depending on the characteristics of your estate, some of the executor’s jobs may include:
- Communicating the testator’s wishes to family and other beneficiaries;
- Distribution of assets per the testator’s wishes;
- Communicating with beneficiaries to keep them updated on the process of administering the estate;
- Selling of property per the testator’s wishes or, possibly, court order;
- Paying creditors and other entities to settle debts with money from the estate;
- Ensuring compliance with provisions of the estate; and
- Finalizing the administration of the state in compliance with the law.
An executor doesn’t start managing your estate until after you pass away. It is important to select an individual or organization that you trust and to make sure that all documentation is accurate, complete, up-to-date, and complies with the law. Your estate planning attorney can review your estate plan with you and help you make any necessary updates or modifications.
Who is eligible to be an executor?
While the role of the executor may seem relatively simple, the process can be complex and time-consuming. You want to select an individual that you are confident can perform the necessary tasks in line with your wishes. In New York, as in most states, anyone can be an executor as long they are at least 18 years of age and of sound mind to be able to carry out their duties.
Also, individuals with felony convictions are not allowed to serve as executors. New York Surrogate’s Court Procedural Act §707 denies a person the ability to serve as executor if that person has issues with “substance abuse, dishonesty, improvidence, a want of understanding,” or has other qualities that may make them unfit to serve as an executor. There is also a chance that an individual that cannot read and write fluently in English could be barred from serving as an executor depending on the circumstances of the individual case.
The rules about who can and cannot serve as an executor allow for a broad range of people to serve in the role. One important thing to consider is if the person you have named as executor will be around to do so. It’s generally not advisable to select your best friend because they are likely close to your age, and it is difficult to determine if they will be able to fulfill their duties when the time comes either because of incapacity or potentially their own death.
Many individuals choose an entity, like a bank, to serve as their executor. These types of entities are usually impartial and likely to retain existence for many years to come. You should also keep in mind that executor fees are established by statute, so make sure to factor in executor fees when designing your estate plan.