The person you choose to be your executor (sometimes called a personal representative) will play an extremely important role, as that person will be responsible for gathering, securing, managing, and ultimately distributing your money and property when you pass away. As a result, you should make your selection only after careful consideration regarding who is the best person to fulfill this role. Don’t just choose your oldest child because that’s what you think is expected: If a friend or advisor is more trustworthy or better qualified, that person may be a better choice. The probate court will typically honor your choice, but there are certain grounds that could legally disqualify the person you have nominated as executor. Your executor is in charge of executing your estate planning following your death, so you should carefully consider who you choose to appoint to this role.
Characteristics Not Legally Required
There are several factors to consider before choosing your executor that are not addressed in state law. For example, if the person you have chosen is extremely busy, he or she may not have time to serve even if that person would otherwise be a good choice. Similarly, someone who does not live close by may find it more difficult to make the necessary trips to take care of your money and property. It is also prudent to name someone who is reliable and trustworthy, although these characteristics are not legally mandated.
Legal Qualifications to Be Executor
There are certain categories of people who are disqualified from serving as an executor under the law of most states. Here in Texas, you need to meet these qualifications in order to serve as an executor:
- at least 18 years old.
- of sound mind — meaning that a court has no reason to believe the executor is mentally incapacitated.
- a U.S. resident.
- You cannot have been convicted of a felony unless you have been pardoned and/or had all your civil rights restored.
Interestingly, many states have other more unique restrictions. North Carolina law prohibits the appointment of an executor who is found “illiterate” or “otherwise unsuitable” by the clerk of superior court. In addition, North Carolina court will not appoint your divorced or separate spouse or a spouse who knowingly contracts a bigamous marriage,and fortunately, a person convicted of your murder is also ineligible. In Nevada, a probate court will disqualify a nominated executor because of “conflict of interest, drunkenness, improvidence, or lack of integrity or understanding.”
Special Rules for Out-of-State Executors
Out-of-state executors normally are not disqualified, but they may have extra requirements that must be met. Here in Texas, the law requires an out-of-state executor to appoint a resident (often the attorney assisting with the case) to serve as his or her agent.
Situations When Bond May Be Required
There are times when an executor is required to post a bond in order to serve, although Texas law allows you to waive the bond in your will. If a bond is required, the executor will have to submit an application for the bond, which is similar to an application for a loan from a bank. A credit check is typically required, and if the executor does not have good credit, has filed for bankruptcy at some point, is retired, or is very young, it may be difficult or even impossible for the executor to obtain a bond. If a bond is required, it typically must remain in effect until the probate process is concluded or the estate is settled.
Because of these potential difficulties, many people include provisions in their will waiving the executor’s obligation to obtain a bond. Even if the will does not contain a waiver, the executor can ask the beneficiaries of the will to sign written waivers which can then be submitted to the probate court along with a petition requesting that the bond be waived.
Let Us Help
If you are wondering who to appoint as the executor of your estate, we can help you identify the important factors to consider in making this important decision. The law in our state has its own particular requirements, so we can also help you rest assured that the executor you choose will not be legally disqualified. Please call us today to discuss this or any other estate planning needs or concerns. We are happy to meet with you over the phone or by video conference if you prefer.
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Nielsen Law PLLC provides family focused estate planning to individuals and families in Austin, Round Rock, Cedar Park, and the Central Texas area. For more information and to learn about our firm, please contact us.