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10th Edition

The

Executor’s Guide

Settling a Loved One’s Estate or Trust

Mary Randolph, J.D., and Attorney Jennie Lin

TENTH EDITION

JUNE 2024

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Acknowledgments

The authors wish to thank the many people at Nolo and in our professional community who generously gave of their time and expertise.

About the Authors

Mary Randolph received her law degree from Berkeley Law at the University of California, and was an editor and author at Nolo for many years. She is the author of Nolo’s 8 Ways to Avoid Probate. Mary now works for a conservation organization that protects the unique habitats and cultures of islands across the world.

Jennie Lin received her undergraduate and law degrees at Harvard University. After practicing law in New York, she worked for several years as a legal editor at Nolo, where she wrote estate planning articles, edited probate and estate planning books, and contributed to Quicken WillMaker & Trust.

Table of Contents

Part I: Getting Ready

The Executor’s Legal Companion

How This Book Can Help

1Overview

What Executors Do

If You’re a Trustee

Your Legal Duty

Payment for Serving as Executor

Dealing With Emotions—Yours and Your Relatives’

2If You’re Asked to Be an Executor

Should You Accept the Job?

Making the Job Manageable

Part II: First Steps

3The First Week

Organ, Tissue, and Body Donation

Death Certificate and Medical Certification

Autopsy

Burial or Cremation

Funerals and Memorial Services

Other Tasks During the First Few Days

4The First Month

Set Up a Filing System

Order Copies of the Death Certificate

Find the Will

Find Other Documents That Leave Property

Send Notifications of the Death

Keep Property Secure

Sort Through Personal Belongings

5

Claiming Life Insurance, Social Security, and Other Benefits

Life Insurance and Annuity Proceeds

Social Security Benefits

Pensions

Veterans Benefits

Wages Owed to the Deceased Person

The Family Allowance and Other Allowances

Other Possible Benefits and Claims

Part III: Taking Care of the Estate

6Making Sense of the Will

Does the Will Appear Valid?

Reading the Will

Gifts to Groups of People

Disinheritance

Events That Affect Who Inherits

7When There’s No Will

Who’s in Charge

Who Gets What: The Basic Rules

Understanding Key Terms

If an Heir Has Died

Taking Care of Minor Children

8Taking Inventory

Step 1: Look for Assets

Step 2: Make a List of Assets

Step 3: Estimate the Value

Step 4: Add Up Debts

Step 5: Determine How Title Was Held

9Managing Assets and Paying Bills

Your Legal Duties

Keeping Good Records

Setting Up an Estate Bank Account

Managing Tangible Assets

Managing Cash Accounts and Investments

Digital Assets

Paying Claims and Debts

Giving Property to Beneficiaries

Selling Assets

Handling a Business

10Caring for Children and Their Property

Immediate Concerns

Raising a Child

Managing a Child’s Property

Personal and Practical Issues

11Taxes

Overview

The Deceased Person’s Income Tax Return: Form 1040

The Estate’s Income Tax: Form 1041

Federal Estate Tax

State Inheritance and Estate Taxes

Other Taxes

Taxes Paid by Beneficiaries

Examples

Part IV: Transferring Property

12Property That Doesn’t Go Through Probate

Common Assets That Don’t Go Through Probate

Joint Tenancy Property

Tenancy by the Entirety Property

Community Property

Property Held in a Living Trust

Salary or Wages

Payable-on-Death Bank Accounts

Life Insurance Proceeds

Retirement Accounts

Health Savings Accounts

Securities Registered in Transfer-on-Death Form

Savings Bonds

Vehicles

Pension Plan Distributions and Other Death Benefits

Real Estate Left by a Transfer-on-Death Deed

Personal Property That Can Be Claimed With a Small Estate Affidavit

13Transferring Joint Tenancy and Other Survivorship Property

Real Estate

Bank Accounts

Securities

Brokerage Accounts, Mutual Funds, or Money Market Funds

Stock or Bond Certificates

Vehicles

Savings Bonds

If Title Wasn’t Cleared When the First Joint Tenant Died

14Transferring Community Property

Your Transfer Options

Survivorship Community Property

Community Property Survivorship Agreements

State Probate Shortcuts

When the Second Spouse Dies

15Claiming Money in Retirement Plans

Retirement Plans: The Basics

Who’s the Beneficiary?

If the Surviving Spouse Is the Beneficiary

Nonspouse Beneficiaries

Special Rules for Multiple Beneficiaries

If a Trust Is the Beneficiary

If the Beneficiary Has Died

If No Beneficiary Was Named

If the Estate Is the Beneficiary

16Claiming Payable-on-Death Assets

If the Asset Was Co-Owned

The Effect of Divorce on POD Beneficiaries

How Beneficiaries Can Claim Assets

17

Special Procedures for Small Estates

Are You Handling a Small Estate?

Claiming Property With Affidavits

Using Simplified Probate

18The Regular Probate Process

Common Questions About Probate

The Typical (Formal) Probate Process

The Process in States That Offer Informal Probate

Probate in Another State (Ancillary Probate)

Disputes During Probate

Do You Need a Lawyer?

If You Go It Alone: Working With the Court

Part V: Getting More Help

19Finding More Information

Your Local Court’s Website

Libraries

Government Websites

Law Firm and Other Private Websites

Finding Forms

Finding Definitions

Researching Specific Questions

Try an Internet Search

20Lawyers and Other Experts

When to Get Help

Deciding What You Want From a Lawyer

Finding a Lawyer

Choosing a Lawyer

Working With a Lawyer

Paying a Lawyer

Solving Problems With Your Lawyer

GGlossary

A

State Information

BHow to Use the Downloadable Forms on the Nolo Website

Editing RTFs

Forms Available on the Nolo Website

Index

PART I

Getting Ready

The Executor’s Legal Companion

Chapter 1Overview

Chapter 2If You’re Asked to Be an Executor

The Executor’s Legal Companion

Most people, at one time or another, must wind up the affairs of a spouse, close relative, or friend who has died. They become responsible for collecting and distributing the deceased person’s worldly goods, following the instructions in the will and state law.

If you find yourself in this position (or if you’re helping someone who is), your new legal obligations and the unfamiliar world of probate courts and lawyers might seem overwhelming. And unless you’re a professional, handling an estate or a trust is much more than just a legal and financial job. You must deal with powerful and sometimes contradictory feelings about the loss. Grief might debilitate you, at least for a while. Just getting through daily life might feel daunting, not to mention the tasks ahead: sorting through records, making phone calls, and making decisions.

It might take some time before you can attend to all these matters. But you can do it, with help from this book and family, friends, and professionals.

You might be surprised to find that acting as the representative of an estate and steadily tying up loose ends can be in some ways satisfying. In your role you’ll both honor the wishes of the person who has died and perform an unquestionably useful service to those still living. Some even find that it can be a way of saying goodbye and moving on.

How This Book Can Help

This book leads you through the process of what you must do if you’re named as an executor, administrator, or personal representative. (We’ll learn more about the exact differences among these terms later.) In a nutshell, you must gather the deceased person’s assets, pay debts and taxes, and distribute what’s left. This book will help you know what to expect, what decisions you’ll need to make, when to get help, and what questions to ask.

More than anything else, the difficulty of your job depends on how much preparation was done before the deceased person died.

If the deceased person was organized, you’re familiar with their finances and property, and the family members are reasonably cooperative, your job will still take effort, but it shouldn’t involve big headaches. If you inherit a mess—poor records, unclear instructions, and squabbling family members—you’ll have a harder row to hoe. You’ll be able to do it, but it might take a good deal longer.

If you’re worried about botching the job and ending up personally liable for your mistakes, relax. You’re very unlikely to create personal legal problems if you act honestly and follow a few basic rules.

One very important part of the job is dealing with family members. They’ll want to know what’s happening, which means you might have to field a lot of anxious questions. Why is it taking so long to distribute the assets? Shouldn’t you sell Dad’s stock (or car or house) before its value drops? Why can’t I take the earrings Mom always told me she wanted me to have? What are you going to do about Mom’s sister, who’s taking things from the house?

This book will help you head off spats, and even lawsuits, with regular communication. Beneficiaries will appreciate knowing, for example, that you must wait for a court-imposed deadline before you can distribute property to them.

You’ll also learn how to protect yourself by sticking to the legal rules and keeping careful records of your actions.

Keep in mind that you can take your duties one step at a time. Yes, the law imposes deadlines here and there, but for the most part, you’re free to take things at a pace that is manageable for you. You can and should honor your own feelings and needs at the same time as you honor the wishes of the person who trusted you with this responsibility.

Get Forms and More at This Book’s Companion Page on Nolo.com

You can download the Information for My Executor, Information for Emergencies, Summary of the Will, and Inventory of Assets and Debts forms included in this book at:

www.nolo.com/back-of-book/EXEC.html

When there are other important changes to the information in this book, you’ll find links to articles on this same dedicated page (what we call the book’s companion page). (See Appendix B, How to Use the Downloadable Forms on the Nolo Website, for a complete list of forms available on Nolo.com.)

CHAPTER

1

Overview

What Executors Do

If You’re a Trustee

Your Legal Duty

Payment for Serving as Executor

Dealing With Emotions—Yours and Your Relatives’

What does an executor do, exactly? If you’re like many people, you probably have only a vague idea. Essentially, the executor’s job is to carry out the deceased person’s wishes—making sure that assets go to the people or organizations the deceased person wanted to inherit them. But of course, this simple fact barely hints at the work involved or the emotional aspects of the job. It’s not always easy, but it’s a job that you can do well if you bring to it good measures of patience, common sense, and persistence. Some help from this book, and occasionally from knowledgeable professionals, won’t hurt, either.

Winding up an estate will probably take from 6 to 18 months, depending on the circumstances and the law in your state. Some probate courts are also more backlogged than others. Here’s how it usually goes:

First week: Immediate practical decisions

Next several months: Financial and legal matters

One (occasionally two) years: Taxes

What Executors Do

An executor is the person named in a will to handle the property of someone who has died. If the deceased did not leave a will, the probate court will name an administrator to this role. Both executors and administrators are also called personal representatives. In this book, we default to the common term executor, but the responsibilities for these roles are essentially the same.

As executor, you must collect and take care of the deceased person’s assets, pay debts, and distribute what’s left to the people who inherit it. Sounds pretty straightforward and, in many instances, it is. Here’s a little more detail.

Gather the deceased person’s assets. This part shouldn’t be hard, especially if you’re familiar with the deceased person’s finances and the assets are typical things, such as a house, a car, and bank and investment accounts. But if you’re unprepared, and the deceased person leaves behind murky finances and jumbled records, you might have a tougher time knowing what property you’re supposed to take charge of. (The best strategy is to get things straightened out before the death, as explained in Chapter 2; if that’s not possible, see Chapter 4 for help with finding and making sense of financial records and other papers.)

Take care of property. You must safeguard the deceased person’s property (both real estate and personal property, which is essentially everything else) until you hand it over to beneficiaries. For example, if a house or condo is empty, and a car is parked at the curb, you’ll need to make sure both are secure. You might also have to decide whether to sell certain assets, either to raise cash or to avoid seeing an asset lose significant value. When it comes to managing investments, your duty is not to turn a big profit, but to avoid losing money.

Pay debts and taxes. Most people don’t leave behind outsized debts or tax bills, so this isn’t normally a problem. But if the estate doesn’t contain enough money to go around, it can be a headache. You aren’t personally liable for the deceased person’s debts (unless you were married, in which case you might be); you’ll pay them from the deceased person’s assets.

You’ll have to file income tax returns on behalf of the deceased person and, if the estate goes through probate and receives income, on behalf of the estate as well. You almost certainly won’t need to file a federal estate tax return; very few estates are big enough to require them. (See Chapter 11.) Thirteen states collect their own estate tax, however, and most impose the tax at a lower threshold than the federal estate tax. (Two states impose their state estate tax on estates over $1 million in size—this is the lowest threshold among the states.) Check Appendix A to see whether your state imposes a state estate tax and, if so, the threshold at which it begins.

Distribute what’s left. You’ll transfer assets to the people who inherit them under the will or under state law if there’s no will. This often involves going to probate court, but not always.

Summary of an Executor’s Duties

Find the will, if any.

Notify the post office, utility companies, credit card companies, banks, and other businesses of the death.

Notify the Social Security Administration and any agencies from which the deceased person was receiving benefits.

Inventory all assets and, if necessary, have valuable ones appraised.

Determine whether probate is necessary; if it is, conduct the probate court proceeding or hire a lawyer to do it (or help you).

If there’s a living trust, work with the successor trustee to coordinate bill paying, property management, and other tasks.

Notify beneficiaries named in the will or people entitled to inherit under state law.

Take good care of estate assets until you turn them over to the beneficiaries.

Solicit beneficiaries’ input on and consent to important decisions, such as selling assets or changing investments.

Collect money owed to the estate—for example, final wages or insurance benefits.

Pay bills owed by the estate.

File final income tax returns for the deceased person.

If the estate was very large, hire a tax lawyer to prepare estate tax returns.

Distribute the assets.

Whether you need to go through probate will depend on what kinds of assets the deceased person left and how much estate planning the person did. Many kinds of assets (for example, individual retirement accounts, payable-on-death bank or brokerage accounts, and life insurance policies) can be transferred by the institutions themselves, without the need for probate, but only if the owner filled out the forms that the institutions required for a post-death transfer.

In recent years, many states have simplified probate significantly, so even if probate is required, it won’t drag on like a court case in a 19th-century novel. And almost all states now offer simplified probate for small estates. (See Chapter 17.) What qualifies as a small estate might surprise you: In some states, estates worth hundreds of thousands of dollars can slip under the wire.

Help out. Finally, you might find yourself helping beneficiaries with matters that aren’t, strictly speaking, within your authority as executor. For example, life insurance proceeds aren’t part of the estate, but a beneficiary might want you to help claim policy proceeds.

If You’re a Trustee

Many people use living trusts as substitutes for wills, so you might find yourself tapped for the job of trustee rather than, or in addition to, executor. If this is the case, you’ll want to check out the valuable information in The Trustee’s Legal Companion, by Liza Hanks and Carol Elias Zolla (Nolo).

How does a living trust work? A simple living trust is used to leave property to loved ones, like a will, but with one important distinction: The living trust avoids probate. If you’re wrapping up this kind of trust, you can often carry out your duties in several months. That’s because you don’t have to get probate court approval. You can simply transfer trust property directly to the people named in the trust document. However, if the trust is set up so that an adult manages property left to children (often grandchildren), your job as trustee might last years as you invest and spend trust property on behalf of the children until they’re grown.

Even if you’re a trustee, you might very well still need The Executor’s Guide. Here are two common scenarios in which you’ll need to act as an executor or administrator in addition to a trustee:

The deceased person made a will naming you as executor, in addition to the living trust naming you as successor trustee (the technical term for the person who takes over when the trust maker dies). This might happen in the situations described just below.

The deceased person made a living trust and did not make a will, but owned property outside of the trust—maybe because they didn’t correctly transfer property to the trust, or maybe because they acquired property shortly before they died and never got around to it.

In the latter scenario, unless all of the non-trust property transfers outside of probate or using other special procedures (see Chapters 12–17), you’ll need to go through the regular probate process. It’s counterintuitive that you’d need to take the estate through probate when a trust exists and there wasn’t a will, but it’s possible.

As for the first scenario, why would someone who made a living trust also make a will? In fact, two types of wills very frequently accompany a living trust:

a simple backup will that names beneficiaries for any non-trust property, or

a pour-over will that names the trust as the beneficiary of any non-trust property.

Adding a will to catch non-trust property helps make the estate plan more airtight by ensuring that every single piece of property goes to a specified beneficiary. In addition, only wills can name guardians for minor children; living trusts can’t.

The examples below illustrate the common situations in which a person handling a trust might still need to deal with wills and probate: a trust with a stand-alone will, a trust with a pour-over will, and a trust where the decedent failed to add property to their trust and also left no will.

EXAMPLE: John’s living trust directed the successor trustee to distribute his assets equally among his children. He forgot that, in his will made years earlier, he directed that the income from his invention, which was licensed, be given to his mentor, Pete. John never revoked that old will. When John died, the royalties from his invention had to go through probate court before ultimately going to Pete. John’s children got equal shares of the rest of John’s estate (according to the trust terms) without having to wait for probate.

EXAMPLE: Alice established a living trust giving all trust property to her children. She also wrote a will specifying that any assets not in the trust be distributed to (poured over into) the trust. Alice dutifully transferred all appropriate items to the trust shortly after she made it. But a few years later, she inherited her father’s vintage Corvette and took title in her name alone (rather than transferring it to the trust). When Alice died, the successor trustee had to go through a probate proceeding in order to distribute the car to the trust, as directed by the will. The car was then sold and the proceeds divided among Alice’s children, as her trust directed.

EXAMPLE: Let’s return to Alice, with the same facts except that her will specified that any assets not in the trust be given to her sister (rather than distributed to the trust). When Alice died, the Corvette went through probate before being given to her sister. The property in Alice’s living trust was given to her children.

EXAMPLE: Let’s use the same facts again, except that Alice did not make a will at all. The probate court appointed the successor trustee the administrator of the estate to handle the probate of the Corvette. The car was distributed according to the state laws of intestate succession, which set out which relatives get property when someone dies without a will. The property in Alice’s living trust was given to her children.

To summarize, this book (The Executor’s Guide) will help you when you’ve been named the executor in a will (whether or not a living trust exists), or when the deceased person did not make an estate plan and you’re taking charge as the administrator or estate representative. It might also come in handy if you’re a trustee and discover that the deceased person owned property that was never transferred to the trust.

The Trustee’s Legal Companion, by Liza Hanks and Carol Elias Zolla (Nolo), will be invaluable to you if you’ve been named the successor trustee of a living trust.

Your Legal Duty

As executor, you are in charge of property that belongs to other people (beneficiaries and creditors). You are also following instructions left in a will by someone who is no longer there to supervise you. Because such a situation leaves a lot of room for mischief by a dishonest person, the law requires you to act with the highest ethical standards. You must follow a set of well-established rules and procedures.

An executor has what’s called a fiduciary duty. It means that you must always act in the best interest of the estate—not your own interests. For example, if you and the deceased person owned a business together, and you want to buy the deceased’s half interest, you must follow a scrupulously fair, open, and competitive process to offer the business interest for sale. The process would have to be run solely for the estate’s benefit, not yours.

Here are a few examples of acts that would violate your legal duty and could get you into trouble:

benefiting personally at the expense of the estate—for example, selling yourself estate property

selling an asset during probate if you don’t have authority

investing estate assets recklessly—for example, in a volatile stock, or

arranging things so that one beneficiary ends up with an unfairly large share of assets.

If you violate your fiduciary duty, beneficiaries can sue you for any loss you caused them, and a court can remove you from your post. In some states, a court can remove an executor not only for misconduct, but also if all of the beneficiaries request it.

An executor who steals money from the estate can go to jail, just like anyone else who steals. For example, a Massachusetts executor who was in charge of $550,000 from a wrongful death lawsuit over her mother’s death didn’t split the money with her siblings as she should have under state law. Instead, she and her husband kept most of it; they were both sentenced to 18 months’ imprisonment. (Brockton woman sentenced after cheating her siblings out of thousands in settlement in mother’s death, Boston Globe, Jan. 25, 2012.)

Payment for Serving as Executor

You’re probably entitled (under the terms of the will or by state law) to compensation for your work as executor. Whether to accept this compensation is a personal decision.

Some family members feel uncomfortable accepting money. Others might believe it’s only fair that they be compensated for their time. And some might decide based on whether the responsibilities are particularly onerous or long-lasting, or whether they’ve been chosen because of special skills—such as the ability to manage the deceased person’s business until it can be sold. All of these are reasonable approaches.

However, there’s one practical reason to decline a fee: It’s taxable income. If you’re inheriting everything anyway, you’re better off waiving the fee and instead inheriting the money, which won’t be subject to income tax. (The exception to this rule is if estate tax will be due, and your personal income tax rate is lower than the estate tax rate; in this rare situation, it might be wise to take the payment as compensation. See Chapter 11 for more on estate taxes.)

Just how much you’re entitled to be paid depends on the terms of the will and your state’s law. If the will doesn’t set out a specific fee or hourly rate, state law in most places will allow you to claim a reasonable fee. It’s up to you to decide what’s reasonable. But if beneficiaries or creditors object, and there’s a probate court proceeding, they can complain to the court, which will review the fee.

Some states (New York and California, for example) let executors claim a set percentage of the value of the probate estate. Still a few others (such as Texas) give executors a percentage of the money that flows in and out of the estate, to try to reflect the amount of work the executor must do to manage assets.

Dealing With Emotions—Yours and Your Relatives’

Unless you’re a professional, handling an estate is much more than just a legal and financial job. When you’re acting on behalf of a family member or close friend, you must deal with powerful and sometimes complicated feelings about the loss.

As executor, you will probably also have to work with the emotions of others. Beneficiaries and family members can be cooperative and patient—or grasping and unhelpful. Their demands might weigh more heavily on you than does probate court paperwork. On the other hand, you might garner much-needed support from the network of family and friends.

You’ll have to develop your own strategies for dealing with difficult family members. One good use of a lawyer is to have that person be a buffer between you and them. A few simple actions, however, are always helpful:

Keep beneficiaries informed about what’s happening (or not happening) with regular letters or email.

Make sure you have legal authority for everything you do.

Keep careful records of all actions you take.

Probably the best way to head off spats, and even lawsuits, is regular communication. You might think you don’t have anything to report—but that could be the time beneficiaries most want to hear from you. Even brief email messages, sent regularly, can calm people’s anxieties.

Some executors find it helpful to hold family meetings to discuss ongoing issues. Others avoid such gatherings like the plague, because they know they will only ignite smoldering problems. Some families hire a family counselor or therapist to help people talk—and listen—to each other and work through problems. You’ll have to discover, through trial and error, what works for you and your family.

What Happens to Inheritances?

According to one study, Americans in their 20s, 30s, and 40s who inherit money save about half of it and spend or lose the rest. Within two years, a third of people who inherit money have negative savings—that is, they’re in debt. (These figures come from Jay L. Zagorsky’s 2012 paper, Do people save or spend their inheritances? Understanding what happens to inherited wealth, which was published in the Journal of Family and Economic Issues.)

Financial experts agree on some commonsense advice for people who inherit money.

Wait. Take some time to think about short-and long-term goals. Talk to your family about priorities: College? Retirement? Travel? Home repair? Paying off debt? If the inheritance is significant, consider consulting with a financial adviser.

Evaluate your financial situation. Look at your emergency savings (it’s always a good idea to have enough cash to live on for a few months) and your retirement account.

Don’t make promises. It’s a wonderful impulse to want to help family or friends by helping to pay for school, car repairs, a house, or whatever else they might need. But if you make promises before realistically evaluating your own needs and circumstances, you might not be able to keep them—and risk damaging the relationships you hoped to nurture.

CHAPTER

2

If You’re Asked to Be an Executor

Should You Accept the Job?

Legal Restrictions on Who Can Serve as Executor

Skills You’ll Need

Your Situation

Making the Job Manageable

Get a List of Assets

Make Sure There’s an Up-to-Date Will

Encourage Steps to Avoid Probate

Get Wishes for Final Arrangements in Writing

Make Sure You’ll Have Access to Documents

Make Sure You’ll Have Passwords

Encourage Efforts to Avoid Estate Tax, If Necessary

Get a Plan for Hard-to-Sell Assets

Get a Handle on Debts

Get a List of Debtors

You might be surprised to learn that you were chosen to be the executor of a deceased friend’s or relative’s estate. You might feel pleased to have a chance to do a final and important favor for someone you loved. On the other hand, you might be inclined to accept this responsibility simply because you don’t think you have a choice.

In fact, you do have a choice. Even if you feel an obligation to the deceased person, who has both honored and burdened you by choosing you for this role, you can decline the job and let it pass to someone else. And although chances are you have a good reason—poor health or other consuming commitments, for example—the law does not require you to explain it to anyone.

If you’re lucky enough to know in advance that you have been chosen, you’ll have some valuable time to think about your options. If you decline, the person will have the chance to choose someone else.

If you accept the job, you and the person who appointed you can do many things now that will make things much easier when your services are needed. Because your job will be to carry out that person’s wishes, it makes sense to take the opportunity to work together now. The two of you can clarify what that person intends. If you do not understand the will’s directions, now is the time to raise your questions.

This chapter discusses how to decide whether to accept the job of executor—and how to make the job easier if you do.

You’re Not Alone

If you don’t think you’re ready to take on the job, you’re not the only one. According to one survey:

52% of adult children don’t know where their parents store estate planning documents

58% of adult children don’t know the content of those documents, and

16% of adult children are unsure if their parents have a will or living trust.

(Source: Senior-care resource site Caring.com, quoted in the CNBC article Most kids are clueless about parents’ estate plans, May 2015.)

Should You Accept the Job?

If you’re asked to be an executor, or if you learn through the family grapevine that you’ve been named to the post, you don’t have to accept or decline now. You can decide later, when it’s actually time to serve. But if you already know—or are pretty sure—that you can’t or don’t want to take the job, it’s helpful to announce your decision right away. That way, the person who sought your help can choose someone else.

If your spouse or parent asks you to step in, you probably feel duty-bound to take on the role, even if you’d love to say no. But if your family has a history of turmoil and disagreement, or if the job is just too large a burden, you’re not doing anyone a favor by accepting.

Here are some factors to consider as you weigh your decision.

Legal Restrictions on Who Can Serve as Executor

Every state has laws about who can serve as an executor of an estate. So even if you’re willing to take on the job, it’s possible—though not likely—that you won’t qualify under state law.

Most states won’t allow you to serve as an executor if you’ve been convicted of a felony. In addition, non-U.S. citizens, as well as U.S. citizens who don’t live in the state where the deceased person lived, might also face restrictions or extra hassles.

The details of these restrictions vary by state. For example, in Maryland, a non-U.S. citizen can’t serve as executor unless the person is both a permanent U.S. resident and the surviving spouse or a close relative of the deceased person. (Md. Code Ann. [Est. & Trusts] § 5-105.) In New York, state law bars non-U.S. citizens who don’t live in the state from serving as executor. (N.Y. Surr. Ct. Proc. Act § 707.) In other states, rules prohibiting non-U.S. citizens who are state residents from serving as executor have been found unconstitutional. (For example, see the result for Florida, In re Fernandez’ Estate, 335 So.2d 829 (Fla. 1976).)

A little more than half of the states do impose special requirements on out-of-state executors.

In some states, if you’re not a resident of the state, the court might make you post a bond, even if the will says it’s not required. (A bond is a kind of insurance policy to protect beneficiaries, in case you mishandle estate assets.) Many states insist that you appoint someone to be your in-state agent as well, so that someone who is subject to the jurisdiction of the local court can receive legal papers on your behalf.

To find out whether your state puts special burdens on out-of-state executors, check your state’s page in Appendix A. The person who wants you to serve as executor might need to name an in-state coexecutor or take other measures to make things work smoothly.

Skills You’ll Need

The best executors are people who are careful, patient, unquestionably honest, well organized, and committed to doing a good job. They must get along with people—especially the other beneficiaries. They need a good bit of spare time, too. You can expect to spend many, many hours, probably for six months to a year, to do the job.

You don’t, however, need to be a financial wizard or legal expert. You can always get help with your tasks. For example, perhaps a sibling, even one who isn’t serving as your coexecutor, could help you with the time-consuming jobs of sorting through papers or making phone calls. (This can work especially well if the helpers are recruited in advance by the person who is naming you as executor.) And you have the legal authority to hire accountants, tax preparers, lawyers, real estate brokers, and others whose expertise you need. Their fees will be paid from estate funds, not your own pocket. For example, some executors happily turn over the whole probate process to a lawyer; others do much of the routine work themselves and consult experts from time to time, to get over rough spots.

Your Situation

Every estate and every family situation is unique. The difficulty of serving as executor depends on many factors: the size of the estate, your state’s laws, and the complexity of the deceased person’s financial affairs, to name a few. Two personal factors also loom large: how smoothly family members get along and how well organized the deceased person was.

Complexity of the Job

The size and complexity of the estate count for a lot. If the person will probably leave property of modest value, made up of only a few typical assets, accepting the executor’s job might not be such a big deal.

If you’ve already been helping manage someone’s finances, handling things after death might be a natural extension of your duties. But if you’re unfamiliar with the person’s affairs, you might face as many practical problems as legal ones: finding the will, untangling investments, digging up insurance policies, and the like.

If you’re being asked to be an executor, the complexity of your state’s probate system also matters. While many states have taken steps to move toward a simpler probate process, unfortunately not every state has jumped on this bandwagon. (Chapter 18 discusses state differences in probate procedures.)

Personal Factors

If you’ll inherit most or all of the property, you have a strong incentive to serve as executor. You’ll be in charge of what will shortly be your own property, and you won’t have other beneficiaries to worry about.

If you’re one of several beneficiaries, however—for example, one of three children who will share everything—it might be helpful to ask yourself some questions about the reality you will face:

If you live far away, will it be too difficult or expensive for you to handle the estate? If there is a responsible and appropriate person living close by, that person might be a better choice.

How likely are family members to let you do your job without second-guessing every decision?

How likely are other inheritors to bicker among themselves and with you? Would conflict be reduced or intensified if someone served as coexecutor with you? Sometimes it prevents hurt feelings and future conflict to name two siblings, for example, as coexecutors, even if only one of them is suited to the part—and will likely end up doing the lion’s share of the work. But you will not have gained anything if the two coexecutors are at odds themselves—they would need a third to break the impasse, and that’s impractical.

If you can’t take time off from work, can you do the job on nights and weekends? Even if you can, are you willing to spend your free time working as an executor, even if you get paid?

If you’re able to take time away from work to perform your executor’s duties, will the payment you can legally collect for your services compensate you for lost income? Especially if you stand to inherit only a small portion of the estate, that fee might not make up for necessary income.

Is there anyone else willing and able to do a conscientious job, or at least share the work as a coexecutor?

If the will names someone else to serve as a coexecutor with you, do you think you’ll work well together? Depending on your state’s law and what the will says, you’ll each probably be allowed to act on behalf of the estate separately, but for some decisions—for example, selling real estate—you’ll both need to agree.

Even if the answers to some of these questions are discouraging, it doesn’t mean you should turn down the job. After all, there are ways to constructively deal with many potential problems. But thinking about them now will help you prepare for the challenges ahead and might prompt you to figure out creative ways to avoid problems.

Finally, you might find that the process of winding up a loved one’s affairs is unexpectedly therapeutic. You might get satisfaction in knowing that you’re doing what the deceased person wanted. And whether or not it’s true, many of us feel that we didn’t do quite enough for a person who has died, and that now it’s too late. Maybe not.

A Compromise

If you don’t want to handle the executor’s job alone, you might want to suggest that a coexecutor be named, too. If you are hesitant because the estate is very large and financially complicated, a professional trust company might make a good coexecutor.

Just beware that disagreements between coexecutors can lead to more hassle and more work, so think carefully about whether a coexecutor is likely to be helpful in your situation.

If You Don’t Serve, Who Will?

If you decline the job after the person who names you has died, or resign after serving for a while, someone else must take over.

If you haven’t yet begun probate, you should notify the alternate executor named in the will. If there isn’t anyone, ask the court to be appointed as an executor.

If you resign as executor after having started probate court proceedings, you can submit your resignation to the probate court. You must give the court a written record of what, if anything, you have done—property you have distributed, bills you have paid, and so on.

The court will then appoint someone to take your place. If the will names an alternate executor, that person will get the nod. If it doesn’t, the court will appoint someone. In some states, if you are the surviving spouse or child, you can choose the person who will be appointed.

EXAMPLE: Eleanor’s will appoints her spouse Harry as her executor, but Harry declines to serve due to health issues. The will does not name an alternate executor. Under Oklahoma state law, Harry can nominate someone to serve. He decides to nominate Vanessa, a close friend of Eleanor’s. If Vanessa wants to serve, the court will likely appoint her, even if more distant relatives wanted it. But the court will have the final say.

Many other states don’t consider nominations when family members are available and willing to serve. These states’ laws direct judges to appoint people in a set order, usually something like this:

surviving spouse

children

grandchildren

parents

siblings

another beneficiary of the will, and

a creditor (one who hopes to get paid from the estate can request the position).

If there are absolutely no interested parties, the court hires someone, commonly called the public administrator, to take over.

Making the Job Manageable

A key to how easy it will be to serve as executor is the amount of preparation done beforehand. If you have the chance, getting the will maker to do some planning can smooth out what would otherwise be a bumpy ride. Three areas deserve particular attention:

Organization. Getting organized will make it easier for everybody, now and later. But if you take over a welter of papers, you might spend more time than you ever thought possible sorting them out.

10 Ways the Will Maker Can Make Your Job Easier

Ask the person who has named you as executor to take these steps:

Make a list of significant assets and keep it current.

Write a simple, clear will.

Hold as much property as possible in ways that will avoid probate.

Set out final arrangements wishes in writing.

Make sure documents such as the will, tax returns, deeds, insurance policies, and so on are accessible to you.

Arrange a way for you to have the most current usernames and passwords to important accounts.

If the estate might owe estate tax (very seldom will this happen), investigate ways to reduce it.

If the estate will contain hard-to-sell assets, such as complicated investments or a family business, work with an experienced business lawyer to make a plan.

Get a handle on debts.

Head off disputes by explaining the estate plan to family members and asking them to respect it.

Probate avoidance. It’s not hard to do away with the need for probate for most or all assets—making it possible for you to eventually transfer them to inheritors with a minimum of fuss. To learn more about the types of property that skip probate, see Chapter 12.

Family relationships. Tending a simmering stew of family disagreements will exhaust and probably exasperate you. But if people know about the person’s wishes before the death, you are much less likely to face arguments much later.

If someone asks you to be an executor, have a talk about these crucial matters. If the person who has asked you to serve isn’t willing to do some work now to save you a lot of hassle later (and ensure that their own wishes will actually be carried out), you might have a sound reason to respectfully decline.

Having the Conversation

Many people, understandably enough, prefer to steer clear of the subject of death—especially their own. So it’s common for someone