Estate planning encompasses many different things. One aspect of estate planning is preparing and drafting your last will and testament – a document that will outline what will happen with one’s possessions after their passing, whether they are being left to another person, group or donated to charity.
The first step when writing a last will and testament is to choose the beneficiaries (the people to whom you plan on leaving your estate). Most of the time beneficiaries are family members and loved ones. The second step is to name an executor whose primary purpose is to carry out the legal and financial matters of your estate (including making sure your property is divided according to the last will and testament).
Deciding whom to make your executor is a very difficult decision. Some of their responsibilities, according to this article, include collecting and taking inventory of the assets, paying off any outstanding debts, taxes and the expenses of administration, and then distributing the remaining assets to those persons entitled by the last will and testament. Although an executor doesn’t have to have a law or financial background, it can prove to be very useful in this difficult process as they will be required to go to court to prove they are handling the estate. It also depends on the size of the estate on whether having a family member or a last will attorney would be the better option as an executor.
If you have small estate and feel that there will not be a lot of contention amongst family members, then choosing a family member to take on the role of executor is a reasonable option. A family member is more likely to forgo any “executor fee” and want to handle the estate as quickly as possible. The main purpose of drafting a last will and testament is to make this difficult time in your family’s life easier and not causing more stress. If you don’t want to choose a direct family member, selecting a close family friend might be better as they can be non-biased in the process.
Although it may seem logical to appoint your spouse as executor of your estate, this might not be the best idea. Although they may have better knowledge of your finances, if something were to go wrong, they would personally be held responsible for unpaid taxes or fines for late filings. And when one is stricken with grief over the loss of their beloved, asking them to take on such a responsibility and burden might not be wise.
If you decide to name a family member or friend as an executor, they always have the right to seek legal counsel from an estate planning attorney, get guidance from CPAs and even speak with investment bankers to help them during this process.
According to this article from the American Bar Association, the major benefit of naming a probate attorney as your executor is that they have the experience and knowledge of estate planning. If you have a large estate and business assets that need to be distributed amongst several beneficiaries, a non-partial executor will be quicker and draw less conflict than appointing co-executors.
You can hire any lawyer to be your executor but hiring a probate attorney who also has experience in estate law as well as business law can help the necessary paperwork and court procedures go smoother.
If you are still having a hard time deciding who should be the executor of your estate and you do not appoint one in your last will and testament, the court will decide for you. This can cause even more tension amongst family members and will further delay the beneficiaries from receiving the assets that you have designated to them.
Keep in mind, there are more steps when writing your last will and testament including naming a guardian for your children in the event that they are still minors at the time of your death. If you have any questions, would like to schedule an appointment to start drafting your last will, or if you were recently named an executor and would like to learn more about your legal rights call Mikel J. Hoffman at call (631) 661-2121 or fill out the contact form for a complimentary legal consultation.
Please note the information in this article is not intended as tax or legal advice. It may not be used for the purpose of avoiding creditors or any federal or state tax penalties. Please consult legal or tax professionals for specific information regarding your individual situation and estate planning. Thank you.