Who Is the Best Person for Executor?

Several critical estate planning documents authorize another person—known as an agent, executor, or personal representative—to act on behalf of someone else. These include wills, trusts, powers of attorney, and advance health care directives.

Understanding Executor Authority

Your will only becomes activated after death. The will and executor must be approved by the court. Many people mistakenly believe that being named as an executor grants immediate authority, but this is incorrect. The executor only gains power to act on behalf of the deceased once the court deems the will valid.

After death, the court is petitioned for a court order appointing the executor. Once letters testamentary are signed by the appointed executor, they become active as an officer of the court with a fiduciary duty to act as the personal representative of the decedent’s estate.

When the Named Executor Declines

If the named person declines to serve, the will should designate a secondary person as executor who can then request court validation of their appointment. Others can also petition the court for appointment. However, it is best practice to name two individuals of your choice in your will.

Trustee Appointments

A trust is a separate legal entity with a trustee responsible for the trust and its assets. If a revocable will is created, the trustee is usually the grantor. For irrevocable trusts, the trustee is typically someone other than the grantor. The appointment becomes official only once it is accepted, usually through signing a document or taking action on behalf of the trust.

Like executors, trustees can decline nomination. However, once they accept, they have a fiduciary duty to prioritize the trust’s well-being and manage it properly. Accepting the role and then abandoning it carries serious consequences.

Powers of Attorney

Powers of attorney are used while a person is living. Their effective date depends on the type. A durable power of attorney becomes effective immediately upon signing. A springing power of attorney activates under specified conditions, usually incapacity, though court approval may be required with proof from a treating physician.

Similarly, a health care power of attorney appoints an agent to act on another’s behalf regarding health issues. They may decline the position, but once agreed, they are responsible for their actions.

When No One Accepts the Role

If all named powers of attorney decline to serve and no secondary person is named, the family must apply for a conservatorship, also called guardianship. This is a lengthy, expensive process requiring a thorough investigation. It can be contested if the person resists losing independence or if family members believe it is unnecessary.

Conclusion

These terms are commonly used in estate planning but are not always clearly understood. Your estate planning attorney can address specific responsibilities and requirements, as laws vary by state and appointments differ accordingly.

If you or a loved one needs assistance with elder law or estate planning issues, do not hesitate to contact us. We are here to help.