When you are preparing a will, you’re probably wondering “who can be an executor of a will? Can I just appoint anyone?” The answer is yes. Generally, you can nominate anyone.
People typically appoint a person who they trust most, someone who is young enough to be around to act as the executor, and it’s typically a person who benefits from the will.
It’s good to nominate a successor executor, just in case the person you’ve nominated is later found to be unqualified or is unavailable for whatever reason.
If you are researching who can be an executor of a will, it is likely that you need an attorney. We at the Law Offices of Albert Goodwin are here for you. You can call us at 212-233-1233 or send us an email at [email protected].
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Qualification of an executor
In New York, the general rule is that anyone can be appointed as executor unless that person is disqualified. SCPA §§ 707 and 103 provide for the disqualifications of a person who cannot receive letters testamentary.
If you prefer that your nominated executor be appointed by the court, then you need to know the answer to the question, “who can be an executor of a will?”
Letters testamentary are the letters issued by the court to enable a person to act as an executor. Without letters testamentary, a person is not yet an executor but only a nominated executor. Without letters testamentary, a nominated executor cannot access the decedent’s properties. For example, a bank will ask for the executor’s letters testamentary before allowing the executor to access the decedent’s bank accounts.
To be eligible to receive letters testamentary, you must:
- Be a natural person or a person authorized by law to be a fiduciary;
- Not be an infant (not below 18 years old), declared incompetent, or a convicted felon;
- Not be a non-resident non-US citizen, except:
- A foreign guardian qualified under SCPA § 1716(4); or
- If serving with one or more co-executors, at least one of whom is a state resident; and
- Possess the qualifications required of a fiduciary with no history of substance abuse, dishonesty, improvidence, want of understanding, or being otherwise unfit for the execution of the office.
The court, in its discretion, may also declare a person to be ineligible to act as an executor if such person is unable to read and write English.
When you nominate a disqualified person and there is no qualified alternate executor nominated, the court will appoint instead an administrator c.t.a. or cum testamento annexo (Latin for “with the will attached”). SCPA § 1418 provides for the persons in order of priority entitled to be appointed as administrator c.t.a.
You can appoint more than one executor. It is not unheard of to appoint multiple co-executors. However, if the estate is simple and small, nominating multiple co-executors may lead to additional paperwork, legal costs, and further complications.
For example, if you appoint A and B as co-executors, a bank will not release your funds to A without B’s signature or without a court order allowing A to receive the funds in decedent’s bank account without B’s signature. If B is out of state, A will need to wait to get his signature. If A and B also do not agree on how to manage the estate, this can lead to disagreements that may require court intervention in order to resolve the conflict, leading to additional legal costs.
If you really wish to appoint multiple co-executors, an estate lawyer can help you write the powers of each co-executor to ensure harmony among them. For example, you can designate certain duties for one executor (such as handling bank accounts), while the other executor has a different set of duties (such as handling real estate). You can provide limitations and restrictions. For example, co-executor A can only handle and disburse for expenses below $5,000 and cannot sell real estate. For expenses above that amount or for sales of real estate, co-executor A needs co-executor B’s signature (where co-executor B could be your spouse or child).
There are different ways to make a multiple co-executor arrangement work. But this is generally only advisable for large, more complex estates.
A resident of a different state as executor
A US citizen who is not a resident of the state where you live is someone who can be an executor of a will. However, you must take into consideration the ease, convenience, and facility of having an executor near you. The executor has to clean your house, fix your belongings, coordinate with your banks, and correspond with an estate attorney and an accountant, all of which are within the state where you live. Having an executor who is not a resident of the state where you live can make it more difficult (but not impossible) for the executor to manage estate assets.
An attorney as an executor
You can also appoint your attorney as someone who can be an executor of a will. However, your attorney has to comply with certain additional steps in order to be qualified. First, the attorney must disclose to you before you execute your will that: (a) any person can act as an executor, except for those prohibited under the law; (b) any person acting as executor, including the attorney, is entitled to receive a commission as compensation for the services of an executor; (c) if the attorney acts as executor, the attorney is entitled to legal fees for legal services rendered to the estate; and (d) if the attorney acts as executor without a signed acknowledgement from you, the attorney is only entitled to ½ of the commission of a regular executor.
Once the attorney discloses the above information to you and you still seek to nominate such attorney as your executor, you must sign an acknowledgement that you received the disclosure in the presence of at least one witness (who is not the attorney). Without this signed acknowledgment, the attorney-executor is only entitled to ½ of the commission received by the regular executor.
A Beneficiary as an executor
It is common to appoint an executor who is also a beneficiary. Generally, most people appoint members of their own family, relatives, and friends as their executors. These executors are normally also beneficiaries in the will.
There is no prohibition for a beneficiary to act as an executor. However, the beneficiary must always bear in mind that he is an executor first and foremost before a beneficiary. As an executor, he handles a position of trust and confidence and should always act in the best interests of the estate and all the beneficiaries and not for one particular beneficiary only. When a beneficiary’s and an executor’s interests are in conflict, the person should always first prioritize his responsibilities and fiduciary duties as an executor.
Other considerations in nominating an executor
Being an executor is a big responsibility. The executor will collate your assets, including gathering your money from your bank accounts and putting it all in one estate account. If you have real properties, your executor will be the one collecting the rents. For this reason, the executor must be trustworthy and financially responsible. You do not want your executor collecting rents and putting it in their own pockets or using estate funds to finance their personal expenses. You want your executor to be financially responsible for promptly filing your tax returns and paying your taxes in order to avoid the imposition of penalties on the estate. You want your executor to act at all times in the best interests of the estate and beneficiaries. You want your executor to follow your wishes as outlined in your will as closely as possible.
When you are drafting your will and you are wondering, ‘who can be an executor,’ you need to remember that your executor needs, not only to be qualified, but also fit, appropriate, and equipped with sufficient skills to manage the estate assets.
If you are an executor in need of guidance, you are a person who wants to draft a will, or a beneficiary who has questions about who can be the executor of a will, we at the Law Offices of Albert Goodwin are here for you. We are located in New York, NY. You can call us at 212-233-1233 or send us an email at [email protected].