When you are writing a Will or setting up a Trust, you will be required to name an Executor to administer your Estate after your death. While many people do name a trusted family member to serve in this role, it is not a requirement. In fact, a non-family member is often the best choice. We will review the duties of Executors here and provide some tips for choosing the best person for the job.
Why a Family Member Might Not Be the Best Choice
When you are choosing an Executor for your Will or a Trustee to manage a Trust, you want someone who does not have a vested interest in the outcome of the Estate. In other words, you should not name someone who is also named as an heir or who could conceivably have a claim to your Estate. Doing so creates a conflict of interest that could make the Probate process much more difficult. Since it could be difficult to find a family member who has no right to inherit and is also willing to be the Executor, your best choice might be someone who is not related to you.
Other potential problems of Executors who are family members include:
- Knowing the parties too well. Even if you have a family member—such as a sibling or a cousin—who does not have a claim on your Estate, the person might be so close to the family that they will not be able to act objectively. As the Trustee, they might have a hard time making judgment calls when a beneficiary requests funds.
- Having a close relationship with one party. If the family member you have chosen is closer to one of your heirs than another, that could also create a difficult situation. If a Trustee is tasked with managing funds for minor children, any kind of bias towards one child over another could cause problems.
- Not being qualified. The role of an Estate Executor can be time-consuming and difficult. If you are limiting your pool of options to family members, you might not find a person who can handle the job skillfully.
This is not to say that you can’t have a family member who is a great candidate to be your Executor! Just be aware of potential conflicts, and make sure you talk to your chosen person and your heirs before putting anything in writing.
Don’t Take Your Decision Lightly
The Executor of a Will in Texas has a lot to do upon the death of the Testator (the person who wrote the Will). Some of these duties include the following:
- Obtain a certified copy of the deceased person's Will and file it with the appropriate Probate Court in Texas.
- Notify beneficiaries and potential heirs of the decedent's death and the initiation of the Probate process.
- Gather all the decedent's assets, including bank accounts, investments, real estate, personal property, and any other relevant assets.
- Determine the value of the decedent's Estate by obtaining appraisals and valuations of the assets.
- Open an Estate bank account to manage the financial affairs of the Estate, including receiving and distributing funds.
- Pay the decedent's outstanding debts and taxes, including filing the final income tax return and Estate tax return (if applicable).
- Manage the decedent's property during the Probate process, including maintenance, insurance, and any necessary repairs.
- Keep accurate records of all financial transactions and communications related to the Estate, including receipts, invoices, and correspondence.
- Distribute the assets of the Estate to the beneficiaries according to the terms of the Will after all debts, expenses, and taxes have been paid.
- Handle any legal challenges or disputes that may arise during the Probate process, such as Will contests or claims against the Estate.
- File the necessary court documents and reports as required by Texas law, including an inventory of the Estate assets and an accounting of all financial transactions.
- Seek professional advice when necessary, such as consulting with attorneys, accountants, or financial advisors to ensure compliance with legal and tax requirements.
- Obtain necessary court approvals for significant decisions, such as selling real estate or making investments on behalf of the Estate.
- Complete the Probate process by filing the necessary documents to close the Estate once all duties have been fulfilled and the assets have been distributed.
Throughout this process, the Executor must maintain a high level of honesty, integrity, and impartiality, avoiding any conflicts of interest or self-dealing. If you can’t think of a person—family member or otherwise—who can handle these duties, speak to your Estate Planning attorney to learn about other options, including hiring a professional to manage the task.
