14.1 Choosing an Executor

• Library: A Lawyer's Guide to Estate Planning: Fundamentals for the Legal Practitioner (ABA) (2018 Ed.)

14.1 Choosing an Executor

The selection of an executor for the estate is often given little consideration. Rather routinely, each spouse names the other as executor, with the oldest child or the child who lives in the same community as the parents named as the alternate executor. Occasionally, two or more of the children are named as alternate coexecutors when the parents begin to struggle with fear of favoring one child over the other. Typically, a corporate executor is used only when the children live far from the parents' home or are too busy to handle the task. Also, if the relationship between the children is not harmonious or if the estate administration is expected to be complicated and time consuming, the parents then may consider naming a corporate executor.

The practitioner should urge his or her clients to consider more carefully the nature of their estate and what will be required to properly settle the estate. State and federal death tax returns, estate and fiduciary income tax returns, and final income tax returns for the decedent must be prepared. The preparation of these tax returns often requires much time and expertise to be properly filed. Decisions as to which estate investments should be sold and the proper time for selling them must be considered. Collecting and inventorying estate assets, filing the necessary court reports and reports to the beneficiaries, determining and paying estate debts, and myriad other activities involved in estate settlement require a more thorough discussion of this important function with the clients than simply asking whom they would like to name as executor.

Often the handling of the distribution of family keepsakes and other items of sentimental value by a brother or sister who serves as executor can cause hurt feelings and hostile reactions, the wounds from which may never heal. The use of a corporate executor may avoid such potential problems. Even in harmonious family situations, the presence of a corporate executor assures fairness among all of the beneficiaries.

Although the surviving spouse is the usual choice for executor, that may not always be appropriate. The widow or widower may lack the background, time, interest, or desire to become concerned with all of the details involved in settling an estate. If death is later in life, the survivor may be unable to properly handle this important and technical task. Further, the emotional strain the survivor faces after the loss of his or her mate may...