The term “will” refers to a legal document that a person composes in order to communicate how they wish their property to be divided once they die. There are several types of wills, the most common of which being:
- A self-proving will, which is a will that has been witnessed and signed with all of the formalities required by the state in which the will’s author resides. Self-proving wills are the most common will;
- A holographic will, which is a will that is handwritten without any witnesses being present. It is important to note that very few states will accept this type of will as valid and legally binding, and only under limited, specific circumstances; and
- An oral will is unwritten and communicated orally by the person wishing to distribute their estate. Oral wills are only recognized in a few states, and generally only under compelling circumstances.
Each different type of will has its own criteria for being valid and legally binding. In general, the following requirements must be met by the person seeking to create a valid will:
- Be of Sound Mind: This includes being eighteen years of age and knowing that you are drafting a will.
- Expressly State That the Document Is Your Will;
- Sign and Date the Will;
- Signed By Witnesses: Each state’s laws differ regarding how many witnesses must be present. Further, most states require that the witnesses will not inherit anything from the will. The witnesses should sign the will in the physical presence of the will’s composer, and the witnesses should sign the will at the same time;
- Have One Substantive Provision: This could include appointing a guardian for any minor children, listing who is to inherit specific items, and state what happens to any remaining property not specifically mentioned in the will; and
- Appoint an Executor.
The executor of a will is a person appointed to oversee the distribution of a person’s estate upon their death. This person is generally named in a will by the will’s creator, also known as the “testator,” and should be someone close to the testator who is familiar with their intentions.
Additionally, the executor should be trustworthy in handling the testator’s will. There can be one singular executor, or more people may be named executor in order to ensure the estate’s distribution as dictated by the testator. Potential executors could include a relative, a friend, an attorney, an accountant, or some other professional contracted by the testator.
The main requirement for an executor is that they must be at least eighteen years of age, and they must not have been convicted of a felony. Some states have specific requirements regarding who may be an executor. However, the testator has complete freedom in choosing who to appoint as executor of their will. As long as there is no clear indication that the proposed executor is mentally incompetent, or presents some sort of threat to the estate, the named person is granted the position of executor.
It is important to note that any person named executor in a will does not have to accept the responsibility. They have the right and the freedom to reject the role, and someone who previously agreed to be the will’s executor may decide to resign at any time. In such cases, if the will has named an alternate or additional executor, they will take over. In cases where no alternative executor is named, the court will appoint someone to fill the role.
As previously mentioned, the executor is responsible for distributing the decedent’s estate. An executor’s duties are mostly administrative, beginning at the time of the testator’s death and ending once the estate’s assets have been distributed and all taxes and bills have been paid.
Some of these include, but may not be limited to:
- Handling accounts, or setting up specific accounts in connection with the decedent’s financial assets;
- Paying valid creditors, such as the bank;
- Paying all applicable taxes;
- Paying off any outstanding debts, such as property taxes;
- Notifying social security and other agencies and companies of the death;
- Canceling credit cards;
- Distributing property in accordance with the decedent’s final wishes;
- Regulating specific distribution instructions, such as certain conditions needing to be met before the property may be transferred; or
- Making court appearances as needed.
The executor’s duties and responsibilities will depend on many factors, such as the size of the estate and any specific state laws. Mainly, a will’s executor is responsible for taking care of property distribution and debt and tax payments. An executor may need to locate the testator’s assets before overseeing their distribution, as well as find and contact inheritors. Additionally, the executor will likely be responsible for filing the will with the appropriate probate court.
It is most common for executors to assume the role without wishing to be paid for their services, out of respect and duty to the decedent. However, the executor does have a legal right to be paid, if they so choose. Each state has specific rules regarding how executors are to be paid. Rules are often based on factors such as the value of the estate, and what the probate court decides as the reasonable value of the executor’s services and time.
In situations where a will’s executor breaches their duty, you may need to take legal action against them. In such cases a beneficiary or other interested person may petition the court for removal of the executor. Additionally, in serious cases, the executor may be required to pay damages if their negligence or actions caused losses to another party.
If you find yourself in a situation where you may be serving as an executor, or have any legal issues regarding a will’s executor where you are a beneficiary or interested party, you should consult with a well qualified and knowledgeable estate planning attorney. An experienced estate planning attorney can inform you of your legal rights, as well as represent you in court as needed.