Author: Brenton McWilliams
How to Choose an Executor for Your Will in Alabama
Choosing an executor is an important step in preparing your Last Will and Testament and is a key piece of your estate plan as a whole. If you’re unsure how to appoint an executor, select an executor or, generally, where to begin, this article is for you. This article will explain the role of the executor, discuss some of the different executor options available and provide some recommendations for selecting an executor.
What is an Executor and What Do They Do?
The executor under your will (or sometimes referred to as a personal representative in Alabama) is the person you select to manage your estate and carry out your desires after your death. In your will, you will appoint an executor. After your death, when and if your will is submitted for probate, the probate judge will authorize the executor you’ve selected in your will to carry out your wishes. There are two assumptions here. The first assumption is that you have a legally valid will. The second assumption is that the executor you have selected is fit to serve (there are some legal requirements to serve as an executor in Alabama which will be discussed in further detail below).
To clear up a common point of confusion, your executor has no authority while you’re alive. The executor’s authority is granted by the probate court following the probate of a last will and testament which can only occur after an individual’s death. If you need someone to manage financial and healthcare decisions for you during your lifetime, especially if you were to reach a situation where you are no longer competent to do so, that selection would be an agent under a power of attorney (and I recommend that you create power of attorney documents as part of a comprehensive estate plan).
Typically, an executor’s responsibility begins at the time of death even though the executor doesn’t yet have any true authority. The executor reviews the information available and makes a determination of whether the will needs to be probated. If the executor determines that the will needs to be submitted for probate, the executor would typically be the person who submits the will for probate.
After the executor is appointed by the probate court, the executor is charged with managing the estate. The executor must determine what assets are in the estate and secure the estate assets for the benefit of the heirs and potential creditors. If the estate owes debts, the executor must negotiate with the creditors. After any the debts of the estate are settled, the executor is responsible for making the final distribution to the heirs of the estate.
The executor serves as a fiduciary to the estate. In simplified terms, the fiduciary role requires that, in the management of the estate and in actions taken on behalf of the estate, the executor must act in the best interest of the heirs of the estate and any potential creditors of the estate.
The executor you select might have to engage in activity such as paying off any debts of the estate (debts owed at death or debts later incurred by the estate) and dispersing your money and property to your heirs. The complexity of the executor’s role varies from case to case. The executor’s task can be a simple as liquidating a piece of real estate and distributing the proceeds to the heirs of the estate. Or, for a more involved estate, the executor may be required to spearhead litigation, wind up business, sue to collect a debt or request declaratory instructions from a court concerning the language of a will.
The obligations of your will executor might vary based on the nature of your estate and your intentions. A common misconception is that the complexity of the executor’s role is dependent on the value of the assets of your estate. However, some of the most complicated estates are insolvent estates where, on the books, there is nothing to the estate, but the assets in the estate must be liquidated and paid to the creditors of the estate according to statutory priority.
Truly, the complexity of your executor’s role corresponds to the complexity of your business dealings at the time of your death. Your executor takes over your business dealings. Therefore, if you have a lot going on, then your executor is going to have a lot going on.
It’s critical to appoint an executor who is dependable and well-organized. They’ll play a crucial role in ensuring that your estate runs properly after you pass away. They are in charge of supervising and ensuring that anything you specify in your will is carried out, securing your assets until all obligations and taxes are paid, then transferring what’s left to those who are entitled to it.
Who Can Be an Executor for My Will in Alabama?
Every state has its own set of rules and regulations for who can act as the executor of a probate estate. This article will address the legal requirements and other aspects that determine who can be the executor for your will in Alabama. Not every person can be an executor for your Will in Alabama.
What Are the Legal Requirements to Serve as an Executor in Alabama?
There are certain requirements and conditions which need to be considered. The following are important considerations:
The executor must be at least 19 years old.
The age of majority in Alabama (when a person is legally considered an adult) is 19 years of age. In most other states, the age of majority is 18 years of age. Therefore, for an individual to serve as an executor in Alabama, the executor must be 19 years of age or older. This requirement is found in the Code of Alabama § 43-2-22:
“(a) No person must be deemed a fit person to serve as executor who is under the age of 19 years…”
A person who has been convicted of an infamous crime cannot serve as an executor.
Code of Alabama § 43-2-22 additionally provides that “(a) No person must be deemed a fit person to serve as executor who . . . has been convicted of an infamous crime.” To my knowledge there isn’t any caselaw expounding on the definition of an infamous crime in the context of this statute. That leaves some discretion on the part of the probate judge to determine, on a case by case basis, what constitutes an infamous crime. However, in my experience, there is going to be at least a question of disqualification from serving as an executor for any individual with a felony conviction because an argument can be made, by reference to some other case law and statutes in Alabama, that any felony is an infamous crime. Additionally, a felony conviction may disqualify a person from serving as executor because it my serve as evidence of the next disqualifying factor.
The executor must be capable of discharging their duties as executor.
The executor role is an important position of trust. The executor is required to carry out their duties without ongoing oversight from the probate court. The next statutory disqualification is a recognition that some individuals are incapable or lack the trustworthiness to handle the duties of an executor. Code of Alabama § 43-2-22 provides that “(a) No person must be deemed a fit person to serve as executor . . . who, from intemperance, improvidence or want of understanding, is incompetent to discharge the duties of the trust.”
This section of the statute grants fairly broad discretion on the part of the probate court to disqualify an individual from serving as executor. However, in my experience, the probate court has not rejected an individual from serving as executor using this portion of the statute without some information being submitted to the court, perhaps by someone who does not want the individual appointed as the executor under the will to be appointed as the executor by the probate court, or information available to the probate court from prior dealings or the reputation of the individual.
An executor is under no obligation to accept their position as executor.
An executor nominated under the will is allowed to renounce their appointment. In other words, the person named as executor in the will can let the probate court know that they don’t want to be the executor. The executor also has the authority to resign from their position following an appointment by submitting a written resignation to the probate court. Therefore, you may want to talk, in advance, to the person you name as executor in your will to make sure they aren’t hesitant to take on the responsibility.
The executor must be living.
A deceased individual cannot serve as executor. This is probably obvious, but it’s a good transition to mention an important consideration that the person you name as the executor in your will may not be alive at the time of your death. This is an especially important consideration if you plan to name an executor, such as a brother or sister, who is close to your age. If you have another person in mind, it’s a good idea to name a successor executor in case the first person you name as executor is not alive at your death. If you don’t have another person, another option is to name an institutional executor or corporate executor as a successor executor. Banks or trust companies are typically willing to serve as an institutional executor or corporate executor. Naming a longstanding bank or trust company as a successor executor is a great way to make sure someone is there to serve, even as a last resort, in case the other individual or individuals are not alive or, for whatever other reason, are unable to serve as executor.
An executor must be designated in a legally valid last will and testament.
To name someone as the executor of your estate, you must designate them as your executor in your legally valid last will and testament. If you do designate an executor of the estate, the person in charge of your estate will be someone appointed by the court. The court will appoint the first person with statutory priority, who makes an application to serve as the personal representative and is fit to serve.
An executor can be appointed only when it is necessary to appoint an executor.
As discussed previously in this article, your executor has no authority while you’re alive. The executor’s authority is granted by the probate court following the probate of a last will and testament which can only occur after an individual’s death. In addition to an executor designation in your last will and testament, I recommend that you designate someone, in power of attorney documents, to manage financial and healthcare decisions for you during your lifetime if you are no longer competent to do so.
The executor of an estate can be removed by the probate court.
The role of executor is not a position to be taken lightly. It’s a crucial responsibility, and the probate court has the authority to take it away (or remove the executor) if the executor is deemed unsuitable for the job. Causes for removal of an executor, among many others, include a later felony conviction or imprisonment, theft or mismanagement of estate funds and incapacity.
Can the executor of a will be a beneficiary of the estate?
Yes, the beneficiary can (and often is) a beneficiary of the estate. In fact, if there is only one beneficiary, that sole beneficiary is typically the best person for the job since the sole beneficiary will be the person impacted the most by the decisions of the executor. For example, many spouses will leave everything to each other and setup contingent beneficiaries in case their spouse does not survive them. In that case, if the spouse survives, the spouse is the sole beneficiary of the estate and barring extenuating circumstances would typically be the best choice as an executor.
Should I Choose Multiple Persons to be My Executor?
You may consider appointing multiple people or institutions to serve together as executor simultaneously. This is referred to as having co-executors. Naming co-executors is not the same as naming a line of succession of executors who serve alone. Instead, co-executors all serve, together, as “the executor” either acting together, independently or exercising delegated authority.
The most common co-executor arrangement is for two or more co-executors to act together by unanimous agreement or majority action. If co-executors are nominated in a last will and testament, unanimous agreement is the default arrangement in Alabama unless a different decision-making arrangement is specified in the will:
“If two or more persons are appointed co-representatives and unless the will provides otherwise, the concurrence of all is required on all acts connected with the administration and distribution of the estate.” Code of Alabama § 43-2-846.
Multiple co-executors may also be appointed and given authority for each to act independently. A testator (the person creating a last will and testament) may also create a last will and testament appointing co-executors and giving each co-executor separate powers or authorities. For example, a testator may appoint a trusted family member as co-executor to make decisions but also appoint a financial professional or certified public accountant as co-executor to manage the investment of the estate assets and other financial aspects of the executor role.
What Are the Pros and Cons of Co-Executors?
The pros and cons of multiple co-executors center on the balancing of the benefit of spreading out authority over people and the added complications from bringing in multiple decision makers.
The appointment of multiple co-executors can be a great way to place a check and balance on the authority of the executor position. For example, where a testator wants to appoint one of their children as their executor, there may be circumstances where it would be beneficial to appoint multiple children as co-executors. By appointing multiple children as co-executors, the testator would prevent a situation where a child serving as executor could potentially use the authority of their position to disadvantage their siblings. The needs for this balance on authority varies based on the family relationship.
The downsides of requiring joint action from multiple co-executors are the possibility of an impasse and the inconvenience of requiring participation from multiple individuals for every decision and action. In a multiple executor situation, where joint action is required from the co-executors, allowing a situation where one of the co-executors can essentially veto any action can result in a scenario just as bad as allowing a single executor to abuse their authority. For example, if two children are appointed as co-executors and unanimous decision making is required, the co-executor that doesn’t want to take some action proposed by the other is always going to get their way. Having an odd number of co-executors and allowing action by majority can prevent one of the co-executors from abusing their authority and also prevent an impasse on major decisions.
A requirement for joint action by co-executors can also be very cumbersome on the co-executors and slow down the administration of the estate. The typical arrangement (and the default arrangement in Alabama) requires all co-executors to sign any documents required to be signed by the executor. To alleviate this inconvenience, the will could allow for one signature of a co-executor on behalf of all of the co-executors as long as the signature of the co-executor reflects a decision agreed to be a majority or all of the co-executors.
How to Choose the Right Person to Be Your Executor
The selection of an appropriate executor is an important aspect of preparing your last will and testament and completing the overall estate planning process. You’ll need someone trustworthy who is willing and capable of to carrying out your final wishing and distributing your assets to your heirs.
The most critical characteristic your executor must possess is responsibility. Your executor doesn’t need to be an attorney, accountant, or financial planner, but should be responsible enough to hire the correct personnel to assist them, deal with estate issues swiftly, communicate effectively with beneficiaries, and make difficult decisions when required. An executor is paid on a commission basis. Therefore, an executor should be expected to treat their duties as if they were any other job.
Another consideration is where your executor lives. Although in many cases there is no need for an executor to appear in court, there is a possibility especially if the estate goes into some form of contested litigation. In Alabama, an executor nominated in a last will and testament is not required to be an Alabama resident. The executor may be able to hire professionals like real estate agents, attorneys or an estate sale company to handle matters from a distant location, but at least one trip is typically required to review documents and catalogue personal items.
If you’re putting off making your estate plan because you can’t determine who you want to name as executor, you’re not alone. If you don’t have a trusted friend or family member to serve as executor, you can choose a third-party executor, such as a bank, trust company, or a professional who administers estates on a regular basis. However, it’s better to choose someone even if you don’t have the perfect person to serve as executor. If you don’t choose an executor, any of your family members who live outside of Alabama will be prohibited from administrating your estate in Alabama, and your estate may end up being administered by a third-party administrator selected by the probate court. Additionally, the administrator will be required to seek permission from the probate court for many common actions taken on behalf of the estate.
If you would like more information about estate planning, we have more information here. We have more information about the three documents you need for a simple estate plan in Alabama here. We have offices in Baldwin County, Alabama in Orange Beach, Foley and Daphne. If you need help with estate planning, including preparing a last will and testament or revocable trust, please call us at (251) 215-9275 or write us on the contact page to discuss how we can help.