Who Can Be Named Executor of Your Will: What You Need to Consider When Naming One

A will is a legal document in which a person documents how his or her money, real property, and other assets will be distributed when the person passes away. The will usually also names an executor, the individual who will administer the will when the time comes. If you’re a resident of New York, there’s a lot you need to know about your will’s executor. If you die testate, meaning that you actually have a valid will, your last will and testament should name an executor that you have carefully chosen. 

First, it’s important to understand the legal requirements for being named an executor in the state of New York. Your executor must be:

• Over the age of 18;
• Mentally competent;
• A person who is an American citizen or lives in the United States; and
• Not a convicted felon (or convicted of a crime in another state that would be a felony under New York law).

People often choose a spouse or a child to be the executor of their will. Others choose a close friend. The most important characteristic for your executor should be that you trust the person deeply. You want an executor who will respect your wishes as outlined in your will. You want someone who will respect your property and your heirlooms and act in a sensitive manner. You want someone who will be able to keep some unity within the family and heirs, even though these types of situations often cause disunity and disharmony. 

Some people decide not to designate a family member or friend as executor but instead name a respected professional associate, such as an attorney or CPA. If you have a relationship with someone like this who has helped you with your legal or financial matters, this may be a sensible choice for an executor, particularly if you feel there will be too much of an emotional burden for a family member or friend.

In some cases, if you haven’t kept your will up to date, the executor you named may be deceased, disqualified, or quite simply not want the job. Most wills name an alternate executor, which is important when the named executor is not able or eligible to serve. According to New York law, individuals who “do not possess the qualifications required of a fiduciary because of substance abuse, dishonesty, improvidence, want of understanding, or who are otherwise unfit to the execution of the office” are not eligible to serve as executor.  

The Role of an Executor

What do executors do? They play many different roles, depending upon the will and the size of the estate. First, the executor is responsible for probating the Will. This means that the executor must collect the decedent’s assets that will pass under the will. Note that joint property, and policies and benefits that have named beneficiaries, do not pass through probate. In New York, wills are probated and estates are administrated in Surrogate’s Courts. 

The executor will also be responsible for paying the decedent’s debts, such as funeral expenses and taxes, and other administration expenses that may arise. Taxes can include the decedent’s final income taxes, gift taxes, federal or state estate taxes due, if any, and income taxes on income earned by the estate during the period of administration.

Often, it takes several months to several years for an estate to be probated. During this time, the executor is also responsible for managing any estate assets, such as real property. Finally, the executor must distribute the assets in accordance with the will’s terms.

Wills and Estate Planning

As you think about your will and who you should name as executor, it’s important to think more broadly about estate planning. Although wills are often used in planning an estate, they are only one of several legal tools available. A Long Island will attorney can help you understand the full range of options available and tailor them to your unique personal circumstances and needs. When done properly,  an estate plan can provide a number of benefits. It offers peace of mind to the person planning the estate by clearly determining where the person’s assets will go when he or she dies instead of leaving the State to decide. An estate plan can also provide financial security for your loved ones. Estate plans also: 

• Protect Assets: An estate plan is designed to protect your assets in advance of any long-term care needs so that the property remains available for your family when you die.
• Protect Loved Ones: In certain cases, you may want to restrict when a beneficiary can receive assets or how the assets may be used. An estate plan gives you the power to do that. 
• Reduce Taxes: A major objective when creating a will and estate plan is to reduce taxes that will need to be paid by the beneficiaries. A Long Island will attorney can help you develop a thoughtful plan that is compliant with all pertinent tax laws that meet this objective.
• Prepare for Incapacity: Estate planning provides a way to make advance decisions about health care and other personal matters that will take effect in case you become incapacitated. 

Contact a Long Island Will Attorney

The majority of New Yorkers pass away without a will in place. When that happens, New York law designates how the person’s assets will be distributed to spouses, children and others. It may also open the door to discord and fighting among family members over their piece of the estate. A properly prepared will and estate plan allow you to decide ahead of time where your money and assets will go upon your death.

For over 100 years, the law firm of Davidow, Davidow, Siegel & Stern has helped our clients with matters related to estate administration, trusts, and will creation. We understand the legalities and the pitfalls that can arise. We are deeply knowledgeable, broadly experienced, and empathetic to our clients. Contact us today to help you protect your loved ones.