By Timothy S. Barkley, Sr. September 2017.
You have just been notified that you are the executor of your uncle’s will – the uncle whose funeral you attended yesterday. Or, he didn’t die yet, but he confided that fact at the latest family gathering on the occasion of your parents’ golden anniversary. Or, perhaps you’re the uncle trying to decide on who to bestow that signal honor, as you rewrite your will after the death of your only child – or write your will for the first time, figuring that now that you’re retired, it’s time to think about what happens when you die.
Whatever your circumstance, well-laid plans “gang aft agleigh,” as the Bard wrote. Your plans, and the plans of your loved ones, can be torn asunder by the choice of the wrong person to carry out those plans.
An executor is a fiduciary, someone who is charged with what has been called the highest obligation known to law, the obligation faithfully to put aside one’s own needs and desires and scrupulously uphold the interests of another. A parent has the same duty to a child, and an adult child to a parent – and an attorney to a client.
An executor has myriad duties, and should be chosen carefully. Executing a will is not an honor to be bestowed, but a job to be assigned. Folks writing wills often confuse these issues. The job is challenging and must be attended to scrupulously for many months, even years, and will burden your chosen with administrative and interpersonal complications that must be faithfully and carefully unraveled.
An executor, then, must be a person or entity that can “stick to it” for a long period, can lay aside her own interests, and can confront creditors and disappointed beneficiaries. An executor must have administrative acumen – at the very least, her own affairs should be in order, and she should reconcile her checkbook. An executor must not only faithfully discharge the duties of the office, but must also account for that administration. If she cannot account for her daily life, she will likely find it difficult to account for the administration of your affairs after your death.
An executor must marshal the assets of the deceased person – the “decedent” – administer those assets, inventory them and account for the administration of the estate, and distribute assets. She must report to the Court and the taxing authorities, and shoulder personal liability for her discharge of her duties. She is entitled to reimbursement of expenses and compensation for her efforts, but only if there are sufficient assets to make payment.
Because serving as an executor can be a full-time job for several weeks after the death of the decedent, and a long-term part-time job thereafter, some folks choose a professional, such as a lawyer, bank or accountant to handle their affairs after their death. Most people, however, choose family members as their executor, and expect them to consult with professionals as the need arises. Often, then, a trusted child or other relative will serve as executor and the family attorney will prepare the necessary paperwork for the executor’s signature.
Whatever your choice, be sure that you have chosen carefully, and that your executor is fit for the job. And if you have been chosen, attend carefully to the charge laid before you.
Next time: Executor 102: What Do I Do Now
Attorney Tim Barkley
The Tim Barkley Law Offices
One Park Avenue
P.O. Box 1136
Wills & Trusts | Estate Planning | Probates & Estates
Elder Law | Real Estate | Business Planning