Should you accept the role of an estate executor? Siedentopf Law explains the qualifications under Georgia Law, the skills needed, resources available to executors, as well as other issues to consider. We also take a look at what may happen if you turn down the role.
You may be surprised to learn that a friend or family member wants you to serve as estate executor, or that you have already been named executor in someone’s Will. On one hand, you might feel like it is an honor to be selected– you have the opportunity to help carry out a person’s final wishes! On the other hand, you might also feel burdened by the selection and feel pressured to say yes, even though you’d prefer to say no.
The first thing you need to know is: there are options. Serving as an executor is up to you, and you should make your decisions based your own individual situation, as well as the overall demands of the role. Below we’ll discuss the role of an executor and highlight some things to consider before you take on this responsibility.
What is an executor?
An executor (sometimes referred to as a Personal Representative) is a person named in an individual’s Will (also called Last Will and Testament) to execute their wishes for their estate after their death.
The main role of the executor is to protect the deceased individual’s property until all debts and taxes are paid in full. Thereafter, the executor can distribute the remaining assets as the deceased individual directed in their Will.
Often, when writing their Will, a person will select a trusted family member or friend to act as their executor. Other times, individuals will select financial advisors, attorneys, corporations, or other professionals to act as executor of their estate. The state of Georgia does have specific restrictions about the types of corporations that can serve as executor. In Georgia you may name an LLC, Corporation, association, partnership as business trust as your executor, but it must also be authorized to act as a fiduciary.
Click here to learn more about the role of an executor and how to avoid some common mistakes
Are you legally qualified to serve as executor?
Every state has its own laws and restrictions as to who can legally serve as the executor of an estate.
In Georgia, the basic requirements are that the person is 18 years or older, and of a “sound mind.” (Ga. Code Ann. §§ 53-1-2, 53-6-1). Many states also require the named executor be an adult who has not been convicted of a felony. In Georgia, there is no regulation preventing someone who has been convicted of a felony from serving as executor.
Do you have the skills needed to serve as executor?
You do not have to be a financial or legal expert in order to be an executor of an estate– an average or working knowledge of finances is fine. Remember, you can always ask someone for help, such as asking the decedent’s siblings to help make phone calls or sort through personal items. You can also hire help. Executors can legally hire accountants, tax preparers, lawyers, real estate brokers, etc., to help them settle the estate. Executors can use estate funds to pay for these professionals; the money does not have to come out of their own pockets.
Executors do not need to have a specific set of professional skills; however, it is important to possess certain personality traits and interpersonal skills. An executor is supposed to act “in good faith” and avoid conflicts of interest. In order to do that, they should be careful, patient, honest, fair, organized, conscientious, and committed to doing a good job. They need to be comfortable handling disagreements, tempering emotions, and sometimes dealing with difficult family dynamics. Additionally, an executor must have a good amount of spare time, as this role usually requires a 6 month to 1 year commitment—sometimes requiring time off from work. In some cases, family disputes arise which can drag this timeline out even longer.
Factors to Consider
Every estate and every family situation is unique. You should be familiar with both prior to agreeing to serve as an executor. Some questions to consider before accepting the role of executor are:
- What is the size of the estate?
- How much debt exists?
- Are back taxes owed?
- Where is the Will located?
- Who are the named beneficiaries?
- Where are the assets located?
- Are there any businesses you would need to manage or wrap up?
The complexity of the applicable state law should also be a consideration. Even though Georgia’s probate process is quicker and easier than other states, it is still a time-consuming legal responsibility. For more information on handling family heirlooms, which may be part of the job, click HERE and HERE.
There are additional personal factors in serving as an executor, namely, your relationship with the beneficiaries and proximity to the estate. Probating a Will and dividing assets can be strenuous when there are personal conflicts, so it is important to be cognizant of your involvement with the beneficiaries. Do you get along with everyone? Are there family or friends who may make the process more difficult? Do you live far from the decedent’s property? Keep in mind that you may spend a lot of time traveling back and forth. And sometimes executors need to be available to appear in Court. But remember, as stated previously, the executor can use estate funds to pay for professional services.
Executors are also entitled to collect payment for their services. Determining this compensation is a complicated process, however, because executor’s fees in Georgia are calculated under a very complex statute, and you will probably need an attorney to help you with those calculations.
If you say “no” to serving as executor, what will happen?
To begin, it is important to note that if you have a large stake in the outcome of the estate, then you might not want to allocate your duties to another person. Saying “no” means that someone else will be responsible for the properties and other assets that you are supposed to inherit. But, if you are firm in your decision, and do not want to serve as executor, there are a few other options:
- If the person who wants you to be their executor is still in the estate planning process, you can always tell them that you are not interested. This will allow them to make different arrangements.
- You may be able to have a co-executor to help you settle the estate. You can petition the Court to allow a named or unnamed executor to serve as co-executor with you. Keep in mind, that while this may alleviate some of the stress, it may add more—since there are now “two cooks in the kitchen”, as they say.
- You can hire someone to help you—estate law attorneys or CPAs often offer these services. As mentioned above, these services can be paid for from the estate.
- You can decline the job and allow the alternate executor to take over. If an alternate is not named in the Will, the Court will appoint another executor to serve in your place.
- If you have already started the probate process, but no longer want to serve you can file a petition for the probate Court to relieve you of your responsibilities, along with a written record of completed tasks, and ask that the Court appoint another executor.
Essentially, if you decline the role of executor, someone has to take over– whether that person is already named in the Will or the Court appoints someone new.
Serving as an executor of an estate is a personal decision. It is okay to say “no” and it is perfectly acceptable to ask for help. If you decide to serve as an executor, make sure you understand the complexity of the situation and have the ability and time to carry out the decedent’s final wishes.