When drafting your last will and testament, one of the most important components of the will is who is going to be the person who oversees your affairs when you pass away. In short, who do you want to select to be your executor. This is one of the reasons it is crucial to have a Will because if you do not have a valid will when you die, the person who will serve as your fiduciary (known as an administrator in the absence of a will) is statutorily determined based on who is your next of kin (known as distributees).
However, assuming you do have a valid will when you pass away, there are some very important things to look for when choosing who you want to be your executor. The first and foremost quality for a nominated executor is trustworthiness. The executor will be entrusted with overseeing your entire estate and that can run into the hundreds of thousands of dollars, and possibly in the millions. Therefore, it is of paramount importance that your executor possesses the highest moral character and is trustworthy as can be. The executor will need to dutifully safeguard all of the assets that comprise the estate, amass and marshal the assets, settle just debts, and pay the beneficiaries their rightful share pursuant to the terms of the will.
In this same regard, one can think of being an executor as analogous to being the CEO of a company. Therefore, your executor has to be an organized person because they will be wearing many different hats in this role. They have to be able to delegate certain responsibilities where it is appropriate such as retaining an estate attorney (if one is not already retained) and a certified public accountant (CPA) to file any income tax that the estate incurs, and any possible federal or estate tax liability. The executor must have a strategy and game plan from the outset, and a well-organized person can accomplish this task.
Another characteristic for your executor is for that person to be good with numbers. While the executor will most likely enlist a CPA for any accounting responsibilities, an executor should be good with math so they can properly balance the estate account and make proper divisions of the shares of the estate to the beneficiaries. They should also be able to calculate and determine any debts for just creditors, and to calculate and fiduciary commissions the executor may be owed.
While it may be stating the obvious the Surrogate’s Court Procedure Act (SCPA) section 707 sets forth the basis for disqualification or ineligibility for certain persons to serve as executors. Hence, one of the bases for ineligibility is that the nominated executor is not a convicted felon. A past conviction for a felony may declare that person ineligible, although there may be a chance to still serve if that individual with a prior felony conviction can obtain a Certificate of Relief from Civil Disabilities which can be obtained from the Court and the Judge who sentenced that person for the felony.
Finally, in the instance where a nominated executor may need to post a bond (or undertaking) to ensure the faithful and dutiful performance of their responsibilities, the executor should have good credit and collateral in the event they have to file for a fiduciary bond. This is one characteristic that is often overlooked, but should be heavily considered especially if the person signing the will (Testator) expects a will contest.
With the help of a skilled estate attorney and the choice of the right executor, the administration of the estate can be less onerous and can be a successful endeavor.
If you need an experienced New York estate attorney, please contact us at the Law Offices of Michael W. Alpert at (516) 280-7288 or e-mail: malpert@alpertlegal.com.