Among my Vermont Estate Planning workshops my clients most appreciate is the one called “Thrills, Chills, and Probate-Related Horror.” The probate process can seem deceptively simple to people who’ve never been through it. But in probate, seemingly minor errors or omissions can have major consequences – delays that drag on not just for months, but for years; significant dollars that could have made life more pleasant for the beneficiaries expended on legal fees or court battles; and, worst of all, permanently damaged relationships among family members. So much can go wrong that, as an estate-planning attorney, I’m passionate about educating the unwary about the pitfalls that surround the probate process.
Among the most common source of problems in probate is the will-maker’s choice of executor – or, rather, the process the will-maker used to make that choice.
First, let’s clarify some of the terminology. “Probate” is the court-supervised process of determining the final destination of the assets of a person who has passed away, such as finding the deceased person’s assets and determining their value; paying the deceased’s outstanding debts and taxes; identifying the rightful beneficiaries and ensuring they receive the amount due them. The driver of the probate train is the Executor, who is nominated for this office in the will of the deceased, then formally appointed by the probate judge as the probate process begins.
What does an Executor do? The Executor is legally responsible for the many tasks that make up the probate process. He/she must understand probate law well enough to be able to comply with it yet have enough humility to get expert help (paid for out of the estate) regarding legal and/or financial areas as needed. The Executor is responsible for filing a variety of documents with the court properly and on time; for all communications regarding the affairs of the deceased and the probate process; for keeping excellent records of work performed and information gathered, including detailed financial records. The Executor must also adopt an appropriate, respectful demeanor when dealing with the probate judge and other court officials. Given the many responsibilities that come with this office, a good Executor comes supplied with good organizational skills and a great deal of patience.
Executors are nominated in the Last Will and Testament of the person who passed away and formally appointed by a probate judge as part of the probate process.
Choosing an Executor
Who makes a good executor? An executor has one job: to lead the charge with probating your estate through the court while remaining loyal to your wishes and being fair to your beneficiaries. As the list of duties above suggests, a good executor is someone who is organized, fair-minded, responsible, and has the time to do the work.
It’s not uncommon for clients to walk into their estate-planning attorney’s office with the assumption that they had to finish a self-imposed homework assignment before they’ve even said “Hello.” More often than not, new clients come to my estate-planning practice with a list assigning individuals to key estate-planning roles from Executor to Trustee. Almost without fail, the roles will be assigned to their children, and will be assigned by birth order, from eldest to youngest, without regard to the individual’s strengths, weaknesses, or willingness to undertake their assigned job. It’s as if they were living in Downton Abbey, with the rules of primogeniture in force.
Let’s take a fictional family, Mr. and Mrs. Traditional. The Traditionals have three children: Peter the Ph.D. Physics Professor, Dana the Doctor, and Eddie the Electrician. The Traditionals announce they’ve decided to name Peter the Executor, Peter as their alternate agent for Powers of Attorney and Advance Directives, and Peter as Successor Trustee.
As the Probate Turns…
Never mind the wisdom, much less the fairness, of asking one person to do all these roles, which would likely occur close in time. Peter could find himself as: the agent under his incapacitated parent’s power of attorney and Advance Directives; the trustee of their trust; and, after the parents’ death, the executor.
Back at the planning stage, would Peter make a good choice for executor?
As a physicist with a specialization in black hole theory, Peter is surely smart enough to figure out how to do probate. His parents admit, however, that Peter tends to be arrogant, thinks he has all the answers, is unlikely to ask for help, and would refuse to step down from the role of Executor no matter how overwhelmed he was nor how poorly or slowly he performed the job. While Peter has infinite patience calculating Absolute v. Apparent Magnitude, with other human beings – not so much. He doesn’t get along well with his family members – especially his siblings.
The Traditionals’ second-eldest child, Dana, also has some characteristics that may not be ideal for an executor. Dana is not financially responsible and lives way above his means. He struggles with keeping his finances organized and paying bills on a timely basis. As one of the most important responsibilities an executor has is managing the finances of the decedent, including clear, detailed, accurate record-keeping and the timely paying of bills, increasing the amount of such responsibility Dana must handle will almost certainly overwhelm him.
Finally, there is Eddie. Eddie has been an electrician for 20 years. He runs his own successful business, including managing its finances. He deals with many customers and other professionals and has good personal skills. He has been a keen observer of the family drama triggered by Peter and Dana, and has managed to remain on cordial terms with everyone while staying out of the fray.
If the law required the Traditionals to select one of their children as their Executor, clearly the youngest, Eddie, would be the best choice. But the law has no such requirement. And given his desire to stay as far away from family drama as possible, Eddie might prefer not to serve as Executor.
Knowing this, the Traditionals begin considering a wide variety of other people well suited to the role – other family members and friends, or professionals such as attorneys or accountants. But this time, they base their choice for each role on how well any individual’s skill set and temperament match the needs of the job.
Choosing your executor and other persons who will play key roles in managing your assets can be a far more important – and more challenging! – aspect of the estate-planning process than deciding who gets Grandma’s pearls or the grand piano. Don’t feel you need to have made these decisions prior to meeting with your estate-planning attorney, who’ll be able to help you identify objectively persons well suited to these demanding roles.