Most client I meet with name their most trusted family member or friend to serve as Executor of their Will when they pass away. Upon their death that person usually does serve; I would say approximately 90% of proposed Executors do serve in this position (if they themselves are still alive). These people think it will be “fun”, or that they “deserve to be in control” of the Probate.
And then the wheels fall off: The Executor finds out that the decedent was a hoarder and has to clean out dumpsters of worthless garbage; beneficiaries fight, are impatient and ungrateful; collecting assets is hampered because they weren’t in easy-to-find places; the Executor lives in Los Angeles, but the decedent’s estate is being Probated in New York.
In New York it is a foregone conclusion that an attorney will push for his client to be named an Executor, particularly where a dispute is anticipated: Access to information (and the right to withhold certain types) is incredibly important in these disputes. In addition, the Estate pays the Executor’s attorney (therefore the attorney knows his fees are near-guaranteed), while non-Executors have to pay for legal representation out of their own pockets.
Truthfully, many people like the supposed power and access to a deceased people’s information and money (not to mention Executor Commissions), but don’t realize the responsibilities and promises they agree to uphold. Attorneys have to also realize that their clients may not be the best party to serve, and then they themselves have to take charge of simple tasks in the Probate process that don’t justify large hourly billing.
Here are (some of) the factors a proposed Executor should ask before accepting appointment:
- Do you foresee an estate dispute? An estate dispute may lead to what is unofficially called a “family divorce” with hard feelings that will never be resolved. However, , you probably do want to be in the driver’s seat if your financial rights are being threatened.
- Was the decedent messy or a hoarder? True, you can hire people to clean out a person’s residence, but if there are items of value you may want to consider if the you really want to do the job.
- Will you be adequately compensated for your work? Remember, you typically only get paid a set percentage for your work, and only get paid for what passes by the Will. Marshalling joint property, life insurance and retirement plans is generally not compensable.
- Do you realistically have the time needed to manage the estate? This is particularly true where there is real estate, substantial personal property, creditor issues or an outstanding lawsuit. Just because an estate may not be worth a lot of money doesn’t mean there isn’t a lot of work.
- Does the Estate have liquidity? If adequate cash is not available up-front, the money to administer to the estate will have to come from somewhere else (often you) and not get paid back until later.
- Are you organized and responsible? Keep in mind that you have a fiduciary duty, and may be liable for mistakes or wrongful actions on your part.
- Do you live close to the County administering the estate? I do have clients who serve as Executor from thousands of miles away, but a few have regretted their decision. Proximity is not required, but is helpful.
