In Georgia, almost anyone of sound mind who is 18 years of age or older can serve as an executor, administrator, or trustee. Law firms, trust companies, and some other corporations may also do so. But who should do it for you and your family when the time comes to follow through on your estate plans?
Personal Representatives: Executors and Administrators
An executor has the responsibility of caring for and disposing of the estate under a will, which includes:
- receiving the estate’s possessions,
- carrying on any remaining business,
- filing for taxes,
- paying the debts of the decedent, and
- distributing the estate according to the instructions in the will.
The testator (the writer of the will) generally nominates their choice for an executor. If they did not name an executor before they died, the court may name one. Alternately, the beneficiaries of the will may elect anyone they choose, except for a spouse who was in the process of divorce or separation from the decedent. In that case, the executor is called an “administrator with the will annexed,” although their duties are the same. If there is no will, or the will is not valid, they are called an “administrator.” Anyone serving an estate in this capacity can be called a “personal representative.”
A testator will often name their spouse or an adult child as an executor for their will because these are the closest concerned and most trusted people in their lives. However, it is worth reviewing what acting as an executor really involves and considering your choice privately. Then you can discuss it with your prospective executor before stating your wishes formally in your will. Your own trust and affection, although they may be important elements, should not be the only considerations.
Acting as an executor is effectively a part-time job, one that requires administrative skill and excellent judgment. Executors must make timely and accurate filings with the probate court, gather the decedent’s assets, and pay their creditors. If petitioned to, they must provide property worth a year’s support to the decedent’s spouse or minor children. They must create and file an inventory of the decedent’s assets, and if it is necessary to sell property to pay the creditors, they must handle that as well. If the decedent had a business to carry on or real property to maintain, the executor must see to it. And during this time, the executor must also deal with impatient family members or those with grievances.
All this may be too much of a burden for a spouse or adult child struggling with grief, along with their own ongoing family or career responsibilities. You may decide to choose a family member or friend who will be less closely affected, especially if interpersonal tensions are high. Alternatively, you can select an attorney or corporate fiduciary that offers these services. However, executors are entitled to compensation, and you will need to be certain that your estate can bear the added expense of a professional.
Whatever you decide, it is wise to name one or two successor executors in your will as well—backups in case your first choices cannot or will not accept the position.
Creating a trust for your property can avoid many of the problems of probate and estate planning. However, the question remains: who should you choose as a trustee?
As with the personal representatives of an estate, trustees have a fiduciary duty to the beneficiaries of their trust—a duty to act in their financial interest in caring for the trust property. If they breach this duty, they will be personally liable. And as with estates, people often select close family members to act, although corporations or attorneys can serve as trustees if they are authorized to do so. But unlike estates, trusts may be intended to last for many years.
Again, you will want to choose a loyal, honest person with good judgment, business sense, and the time and resources to handle the administrative requirements of trusteeship. It is also important to choose successor trustees who can step in if necessary. But what the work entails depends entirely on what the trust is intended to accomplish and the property it keeps.
Some trusts will require more work and commitment than others. For example, you may want to provide for a disabled loved one after your death without endangering their eligibility for governmental benefits; this would require a special needs trust. Such a trust requires state approval and a trustee who can follow specific laws and rules about disbursing payments. That trustee would need to have a strong commitment, a broad knowledge base, compassion, and availability. However, other trusts, such as an inheritance trust that safeguards college tuition money for a minor, would require less of a personal investment.
You may prefer to choose an attorney or trust company that will handle these affairs on a professional basis. Whatever you decide, you do not need to develop these plans alone. Indeed, it is best to create a will or trust with legal guidance. An estate planning attorney can give you the confidence that your estate plans are valid under state law and will not accidentally fail, creating a problematic or expensive situation.
Mike Bascom is an experienced Georgia estate attorney, and he is available to consult with you about any issues you may have with your estate or with trusts that you want to create. Call us today at 770-285-5493 to schedule a free consultation in our Forsyth County offices.