Who Should Be the Executor of Your Estate?
When you make an estate plan, one of the important tasks is designating the executor of your estate. A designated executor who accepts the responsibilities becomes the personal representative of the estate following court appointment. The position is not simply honorary or ceremonial. As the personal representative of the estate, an executor has significant fiduciary duties relating to administration of the estate under Georgia law. When you designate the executor of your estate, you should make certain that you choose a person who is suitable for the position.
What Does an Executor Do?
A person named in a last will and testament as the executor of the estate may either accept or decline the responsibility for administering the estate. To accept the responsibility, the executor applies to the probate court for appointment as the personal representative of the estate. The executor takes an oath, post a bond (if required), and is issued letters of administration by the court. Only then is the executor authorized to act in an official capacity as the personal representative of the estate. Prior to appointment, the executor has no legal authority over the assets and property in your estate, nor does any other person.
Following appointment, Georgia laws impose substantial fiduciary and legal duties on an executor. In many cases, the personal representative retains a probate lawyer to make certain that the complex legal requirements applicable to an estate are satisfied. The lawyer assists with the process of estate administration and probate (if required). Even with assistance from an attorney, the personal representative must perform specific tasks to complete administration of the estate. The responsibility can be time-consuming, depending on the size and complexity of the estate.
Initially, the personal representative’s legal duties include identifying and gathering all the property and assets in the estate. If necessary, they take steps to secure and protect estate property, such as a home or other residence. If probate is required, an inventory of property is prepared and filed with the court. The steps in probate are very specific and have time limitations as well.
Administration of the estate also includes paying all expenses, debts, and claims against the estate, as well as settling any disputes that may arise. Only after all these matters are settled can the personal representative distribute the estate property to the beneficiaries.
Selection of Your Executor
Georgia statutes govern who may serve as executor of an estate. To serve in the position, a person must be at least 18 years of age and be of sound mind, which means they have not been determined by a court to be incapacitated.
Unlike some states, Georgia does not prohibit a person who resides outside the state from serving as the executor of an estate. However, appointing someone out-of-state may create logistical issues for administration of the estate, as well as incur additional expenses and cause delays during the process. If you want to consider designating an executor who lives outside Georgia, you should talk through the pros and cons with your estate planning attorney.
In choosing the executor of your estate, you should consider all the responsibilities the person will have in connection with your estate. Your executor should be someone you trust, without any reservations at all. Your executor also should be able to communicate effectively with the beneficiaries, as well as navigate through the administration process and legal requirements. You should have confidence in the executor’s ability to fulfill all aspects of the role.
In some circumstances, you may wish to designate co-executors for your estate. While designating co-executors may seem like a good idea in some situations, such as when you have more than one child, doing so can create significant issues. Co-executors must agree unanimously on all decisions relating to the estate. This requirement can create tension and disputes, and can lead to delays in the administration process. To avoid unnecessary delays and difficulties, it is best to designate a single executor. If you feel strongly about co-executors, you should discuss that matter with your estate planning attorney before you make a final decision.
Your estate planning attorney helps you navigate the process of selecting your executor, making certain you take all crucial considerations into account. Your lawyer also helps you choose the other fiduciaries in your estate plan. If you wish to consider appointing the same person to multiple fiduciary positions, such as executor and trustee, you should specifically discuss that matter with your attorney. While there is no legal reason you can’t designate one person to multiple positions, you should determine whether that person has the right skills for each position. In some cases, it may be a better idea to distribute the responsibilities for your estate to more than one person.
Talk With an Experienced Georgia Estate Planning Attorney
In our Cartersville estate planning practice at Asset Protection & Elder Law of Georgia, we assist clients with all aspects of creating and maintaining an estate plan, including selection of the executor and other fiduciaries designated in plan documents. We provide services to clients throughout the communities northwest of Atlanta, including in Bartow County, Cobb County, Cherokee County, Gordon County, Floyd County, and Paulding County. Call us at (770) 382-0984 or contact us through our online form.
You may also be interested in:
How an Elder Law Attorney Helps You or Your Senior Loved One
How to Avoid Probate in Georgia with the Right Estate Plan
What Are the Georgia Laws of Intestate Succession — and Why do They Matter to You?
