PREMIUM LEGAL RESOURCES
ASK A LAWYER
Some state call them executors, others refer to them as personal representatives. By any name, this is the person you choose to carry out the terms of your Will. The responsibilities of the Executor are important. He or she must collect your assets, pay all debts, taxes and expenses of the estate, and distribute the remaining assets to your beneficiaries.
You might choose a trusted friend or relative who is capable of handling financial matters. Many banks will serve as executor, but they will charge for the service. In most cases, when a friend or relative agrees to become your executor, he or she will waive or refuse a fee.
There are some restrictions on who may serve as an executor. Many states will only appoint individuals who are residents of the same state. If you want to select a non-resident executor, contact your county clerk of probate court or an attorney to find out what your state allows. It is recommended that a second choice for executor be named in case the first choice refuses or is unable to serve.
Most jurisdictions require that the executor post a bond to protect the assets of the estate. There are usually waivers available in most states that would excuse the executor from posting a bond, the most common of which is if your request it in your Will.
Appointing More Than One Executor
Perhaps the most common reason for naming co-executors is so that two persons can pool their skills and at the same time, each can keep a check on the other. Also, if your state puts limitations on non-resident executors, the court may appoint the non-resident, provided that he or she serves as co-executor with someone who's a resident of your state.
Who Shouldn't Be an Executor
One reason you may want to consider excluding someone as your executor is if he or she is also a beneficiary. This will help to avoid appearances of conflict of interest if the other beneficiaries fear that the executor may take advantage of his or her position. On the other hand, the executor is supervised by the court, and a beneficiary as executor is more likely to waive a fee for serving as executor.
State residency requirements also make certain non-residents bad choices to be an executor. Even though some states do not prohibit non-resident executors, some will require the executor to post a bond, or name a resident as the executor’s representative. Time and travel can also slow up proceedings if your executor is a non-resident
Finally, an executor should not be a minor, convicted felon, or non-U.S. citizen.
How do I choose a Guardian for my children?
Perhaps the greatest peace of mind that parents of minor children can have is knowing who will take care of their children should something happen to them. Naming a guardian in your Will will help ensure that your choice is appointed.
A guardian is legally responsible for the child's physical care, health, education, and welfare until he or she reaches 18 years of age. This will include providing the basic needs such as food, clothing, shelter, health care decisions and education choices. The guardian is not responsible to meet the child's financial needs with his or her own money. Many times, a trustee handles those arrangements with money provided by the estate of the deceased parent or parents. The guardian is not paid for his or her services.
In most cases if your child's other parent survives you, then that parent assumes the guardianship without any other special actions. However, you need to provide for the possibility that the other parent will not be available to be your child's natural guardian. Before nominating someone in your Will, it's a good idea that you ask the person or persons if they are willing to become your child’s guardian. A guardian is not legally obligated to serve, and an alternate choice is recommended in case your first choice refuses or is unable to serve.
The person you choose as the guardian should have good parenting skills and values similar to your own. Family members or trusted friends are good options. Co-guardians are permitted in most cases.
Technically, your choice as a guardian is just a recommendation to the court. However, state laws give high priority to your recommendation. The court will honor your choice unless it's presented with compelling evidence against that choice. Some states allow for a minor child to have input in the decision, particularly children who are 14 years of age or older.
For all sorts of Will & Living Trust Forms for Your Specific State and Circumstance check out:
(This may open a new window. When you're done just close it and you might be back here.)