Choosing An Executor Of Your Will

An older man listens as his young lawyer reviews details of the man’s will, including the executor of the will.

Choosing An Executor Of Your Will

One of the things that must be done as part of an estate plan is choosing someone to handle the estate after your death. This person will have many responsibilities, including probating your Last Will and Testament and distributing your assets to beneficiaries as you instructed. Choosing an executor of your will can be a difficult choice as you balance legal requirements with personal preference and family dynamics. One of our skilled Florida estate planning attorneys may be able to assist you with your decision and ensure it is properly documented. Call Loughlin Law, P.A. at (561) 677-8384 to schedule a consultation and learn more about making this choice.

What Is an Executor of a Will?

According to Florida §731.201, the executor of a will is called a personal representative. A personal representative is the individual named in a will to handle the estate after the estate owner dies. The personal representative handles several responsibilities, including filing the will to start probate, getting copies of the death certificate, identifying and notifying creditors and beneficiaries of the individual’s death, and distributing assets per the will’s instructions.

What Are Florida’s Requirements to Be Executor or Personal Representative?

In Florida, there are only a few requirements that must be met to be the executor of your will. These requirements are quite specific, however. Per Florida §733.302, any person who is sui juris, a legal term for “of age,” and a resident of Florida when the deceased died, is eligible to be a personal representative. They can be a nonresident if they are the the decedent’s adoptive parent or legally adopted child, are related in a direct line (lineal consanguinity) to the decedent (such as parent and child or grandparent and grandchild), or the spouse, sibling, niece, uncle, aunt, or nephew of the decedent. Additionally, those related by lineal consanguinity to any of those relatives, or a spouse of any individual otherwise qualified by this statute can act as personal representative.

Florida does also state a few disqualifiers for personal representatives. An individual cannot be an executor of a will if they have ever been convicted of a felony or convicted in any state of abusing, neglecting, or exploiting a disabled adult or elderly person. Individuals who are under 18 years old or mentally or physically unable to perform the duties required are also ineligible to be a personal representative.

What To Consider When Choosing an Executor of Your Will

Choosing a personal representative can be a difficult decision. There are many factors to consider and some of those factors may weigh more heavily in the decision than others. Some things to consider when determining who to choose as a personal representative include:

  • Trustworthiness: An obvious concern is that the individual chosen can be trusted to follow the instructions in the will and will not lie or steal from the estate.
  • Age: While an adult child may seem like an obvious choice, someone who is too young may not have the experience or maturity to deal with the responsibility and emotional turmoil that can come with being the executor of your will. An older individual who understands what is involved and has had significant responsibility in other areas of life may be a better option.
  • Responsibility: How does the person deal with responsibility? Do they already have too many responsibilities and feel overwhelmed and stressed? Do they ignore responsibilities and procrastinate until it is almost too late?
  • Financial Experience: Settling an estate requires dealing with many different financial aspects. From bank accounts, selling assets, settling debts, and collecting money owed to the decedent, there is a lot to keep track of. Choosing someone who is good with money and has financial experience may be helpful.
  • Willingness: Even if a particular person is the best choice, they should be a willing personal representative. If they do not feel they can handle it, or simply do not want to do it, it is better to choose someone else who is willing. Note that no one may be enthusiastic about this duty and some individuals may want time to think about it.
  • Understanding of Your Values: A personal representative is generally going to follow the instructions provided by the will. However, sometimes things are not clear in the will or simply not included. Someone who understands the decedent’s values may be better able to determine who should get assets not specifically named in the will or which assets are more meaningful and should be reserved from sale unless absolutely necessary.
  • Health Status: The executor of a will should outlive the individual writing the will, in theory. Obviously, anything can happen, but choosing someone who is in good health and takes care of themselves increases the chances that they will be alive to carry out the duties of probating the will.
  • Geographic Location: Ideally, a personal representative will live close to the decedent. Proximity will make it easier to handle all the details of settling the estate as part of their day-to-day schedule instead of needing to schedule multiple trips to deal with various details.
  • Ability to Commit the Time: Small estates may take just a few weeks or months to settle, while larger ones may take a year or more. Regardless of the size of the estate, the executor will need to commit many hours to settling it. If the potential executor is already extremely busy with a full-time job, small children, and other responsibilities, they may not have the time to commit to their executor duties.
  • Ability to Handle Conflict: There can often be family conflict as an estate is settled, with beneficiaries arguing over who gets what and why. When choosing a personal representative, consider someone who can be objective, diplomatic and kind when others may be acting immature, rude, and even cruel.
  • Skills and Expertise: If someone has skills and expertise that are particularly suited to settling an estate, they may be a good choice. Perhaps they have acted as a personal representative before and have already gone through the entire process. Other people that may have skills and expertise that can assist them as executor include accountants, lawyers, and financial planners.
  • Patience and Emotional Stability: Grief affects people in different ways. For some people, it immobilizes them to the point that they are barely able to take care of themselves, much less handle the duties of settling an estate. As most executors are family or friends of the deceased, it is logical that they will also be grieving. Consider someone who shows patience and emotional stability even in difficult times.

What To Do Once You Have Chosen an Executor

Once an individual has chosen a personal representative, there are a few things they should do to make sure everything is in order. After choosing an executor for your will, consider the following steps to settle all the details.

Discuss Your Decision With the Chosen Party

Being a personal representative comes with a lot of responsibilities. Therefore, once an individual has chosen someone to be their personal representative, they should sit down and discuss that decision with the chosen person. While they may have settled on this person, they should frame it as a question, asking if they would be willing to be their personal representative. This allows the individual to say no if they are not comfortable taking on the role. Additionally, take this opportunity to remind the personal representative that if they ever change their mind, they can say so.

This discussion can also be an opportunity to lay out some of the other choices made in the will. For example, explaining the reasons behind some of the bequests may make it easier when the personal representative is distributing assets and beneficiaries have questions. This is also a good time to tell the personal representative where the will is stored and any other pertinent information they may need, such as any accompanying documents or where specific assets are located (such as a vintage car in a storage unit or a piece of jewelry in a safe deposit box).

Choose a Backup

Even if their first choice is willing to act as personal representative, it is always a good idea to choose a backup. The backup will step in if the primary personal representative has died, is incapacitated, or otherwise unable or unwilling to perform their duties.

Individuals can name more than one backup, and can also use a mechanism to engage a backup personal representative, such as including a clause that states if the primary personal representative is not available, any of their children over the age of 30 can act as co-personal representatives. As with the primary executor, it is a good idea to review some of the details with the backup personal representative to ensure they are prepared in the event they ever need to act as the executor of your will.

Consider Seeking Legal Advice

There is no legal requirement to hire a lawyer to write a will or to name an executor of a will. However, there are legal requirements the will and the person named executor must meet. These legal requirements can change as well. Therefore, individuals may want to meet with an estate planning attorney with Loughlin Law, P.A. to review their will and choice of executor and ensure that all requirements have been met.

What If You Do Not Have Anyone to Name as Executor of Your Will?

Most people prefer to name a close relative or friend as their executor. However, sometimes there is no close relative or friend who wants to be executor of your will or who can be trusted to do the job. If an executor is not named, the state will appoint someone to be the executor. This is often the deceased’s spouse, or if there is no spouse or the spouse declines, any adult child of the deceased.

If an individual is unable or unwilling to name someone they know as personal representative, Florida §733.305 allows trust companies, state savings associations, state banking corporations, federal loan and savings associations, and national banking associations, to act as personal representatives. These institutions must be authorized and qualified to exercise fiduciary duties in Florida, so individuals will want to confirm the institution they wish to name meets that requirement.

How Can an Estate Planning Attorney Assist You?

Choosing an executor of your will can be a difficult and complex decision. Among the many factors to consider, you must make sure the individual you choose meets the legal requirements to be a personal representative. At Loughlin Law, P.A., our experienced Florida estate planning attorneys may be able to assist you with confirming your chosen executor has a clean criminal background or choosing a professional executor if necessary. We may also be able to review your will to ensure it also meets all legal requirements. Call (561) 677-8384 to schedule a free consultation and make sure your estate affairs are in order.

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