Picking an Executor: Part 2

In the last blog post, I answered two very important questions to consider when picking an executor: ‘what is an executor?’ and ‘what are the duties of the executor?” This blog will explore two more issues regarding picking an executor.

CAN AN EXECUTOR BE (PERSONALLY) LIABLE TO AN ESTATE?

Executors are NOT personally liable to an Estate that they are administering UNLESS their action (or inaction):

  1. Constitutes neglect or unreasonable delay in collecting the credits or other assets of the estate or in selling, mortgaging or leasing the property of the estate;
  2. Constitutes neglect in paying over money or delivering property of the estate the fiduciary shall have in the fiduciary’s hands;
  3. Constitutes failure to account for or to close the estate within the time provided by this probate code;
  4. Results in economic loss to the estate arising from the fiduciary’s embezzlement or commingling of the assets of the estate with other property;
  5. Results in economic loss to the estate through self-dealing;
  6. Results in economic loss to the estate arising from wrongful acts or omissions of any co-fiduciaries which the fiduciary could have prevented by the exercise of ordinary care;
  7. Constitutes a negligent or willful act or nonfeasance in the fiduciary’s administration of the estate by which loss to the estate arises[1].

WHO IS ALLOWED TO BE AN EXECUTOR?

“Natural persons,” including BOTH residents and non-residents may serve as executor[2].

Banks (provided they have a trust department) and Trust Companies who are properly authorized to do so, may act as executor. Id.

In determining WHICH natural person (or bank) should serve as executor, the Court shall give preference to the following (in order):

  1. The person (or qualified bank) designated in the will;
  2. Any beneficiary named in the will, or a person nominated by the beneficiaries;
  3. Any creditor of the deceased, or a person nominated by such creditor;
  4. Such other person (or qualified bank) as the court may find to be qualified[3].

If you have any questions about establishing your estate plan and picking an executor, or if you are an executor and need legal assistance, please feel free to contact us at info@kreamerlaw.com or by calling us at 515-727-0900.

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