Legal Requirements to Consider When Selecting an Executor

Gabriel Katzner - August 24, 2020 - Estate Planning
San Diego Estate Planning Attorney
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The person you choose to be the executor of your estate (also called a personal representative) will be responsible for gathering, managing, and ultimately distributing everything you own after you pass away. You’ll need to make your selection very carefully; Don’t just choose your oldest child by default. If a friend or advisor is better qualified or more trustworthy, choose that person instead. The probate court will likely honor your choice, but a few factors could legally disqualify the person you have nominated. If your chosen individual is legally disqualified, the court will not appoint that person as executor.

Characteristics Not Legally Required

State law can’t address every single factor, so there are some qualities you will need to vet on your own. If the person you have chosen is extremely busy, for example, he or she may not have time to serve, even if they have other qualities that make them a good choice. Someone who lives far away may find it difficult to make the necessary trips (though with the right lawyer, and a smooth / uncontested administration, trips should be relatively uncommon). You also want someone who is reliable and trustworthy, although these characteristics are not legally mandated they’re of the utmost importance.

Legal Qualifications to Be Executor

Certain categories of people are disqualified from serving as an executor under most state laws. For example, in most states, your executor not be someone who:

  • Is too young (usually 18 or 21 is the limit)
  • has a felony conviction
  • is not a U.S. resident
  • has been found to be incapacitated (physically or mentally unable to manage their own affairs) by a court.

These rules may vary to some degree. For example, in Oregon, those who have been nominated to serve as an executor must disclose any felony convictions to the court, but these convictions don’t automatically disqualify them. Rather, the court will only disqualify them if evidence shows “unfaithfulness and neglect” and the court determines the person is likely to mismanage the estate.

North Carolina law prohibits the appointment of an executor who is found “illiterate” or “otherwise unsuitable” by the clerk of superior court. In addition, North Carolina court will not appoint a divorced or separated spouse or a spouse who knowingly contracts a bigamous marriage. A person convicted of your murder is also ineligible. In Nevada, a probate court will disqualify an executor due to “conflict of interest, drunkenness, improvidence, or lack of integrity or understanding.” 

An Oregon attorney who has been suspended, disbarred, or who has resigned from the bar during a pending investigation or disciplinary proceedings may also be disqualified.

Special Rules for Out-of-State Executors

Out-of-state executors are not usually disqualified, but they may need to meet extra requirements. For example, in Florida, a nonresident cannot be a personal representative unless the person is related to the deceased person or the spouse of a person who is qualified under the statute. Further, many states require an out-of-state executor to find an in-state resident to serve as his or her agent or to deal with certain probate matters. 

Situations When Bond May Be Required

An out-of-state executor may also have to obtain a probate bond, although some state laws allow you to waive the bond in your will. The probate court may also require an executor to post bond to protect the estate by mitigating the risk that the executor will steal or mismanage estate property. If this is required under state law, the executor will have to apply for the bond, the way one would apply for a bank loan. A credit check is typically required, and if the executor has poor credit, has filed for bankruptcy at some point, is retired, or is very young, it may be difficult for the executor to obtain a bond. If a bond is required, it typically must remain in effect until the estate is settled.

Because of these potential difficulties, many people include provisions in their will waiving the executor’s obligation to obtain a bond. Even if the will does not contain a waiver, the executor can ask the beneficiaries of the will to sign written waivers which can then be submitted to the probate court along with a petition requesting that the bond be waived. 

Let Us Help

If you are wondering who to appoint as the executor of your estate, we can help you make this important decision. The law in our state has its own requirements, so we can also make sure the executor you choose will not be legally disqualified. Please call us today to discuss this or any other estate planning needs or concerns. We are happy to meet with you over the phone or by video conference if you prefer.

You can use the link below to schedule a call with Gabriel Katzner, or just call us at 855.528.9637 to learn more about how best to plan today to protect those most important to you




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