Selecting Executors

Your Executor is the person, or entity, you choose to “execute” the terms of your last will and testament. In Texas, the role of the Executor is an extremely important fiduciary position that carries with it a high level of responsibility. The Executor is empowered with the abilities to distribute your estate, pay creditors and handle other probate matters related to your last will and testament.

So, who do you choose for such an important position? The person must be over the age of 18 and not otherwise prohibited from acting as Executor under Texas law. Typically, you will pick a family member you trust for this position. But, you can also appoint an entity, like a bank trust department or a law firm, to act as the Executor. Usually, you cannot name your financial advisor or stock broker to that role because of a conflict of interest, but you may be able to name your accountant. If you are thinking of doing so you MUST contact them in advance and ask them if they can act in that role.

In Texas, there are many different ways of probating a Will. There are Applications to probate a last will and testament (independently or dependently), Small Estate Affidavits, Applications to probate the will as a Muniment of Title, and more. The good news is your Executor doesn't typically choose which method is used.; The better news is an Executor in Texas is required to hire an attorney to assist with the probate of your will. Knowing this may help you choose the person you want to act as Executor when you make your will.

You should also think about the following:

• The typical probate in Texas takes less than 2 or 3 months to complete
• The person named as Executor does not have to live in state, and a standard probate can often be done without having the Executor come to court (although that option is more expensive and not always the best idea)
• The fee paid to the attorney for the Executor is most often paid by your estate, not the Executor
• The Executor typically is entitled to a reasonable fee, although most non-corporate Executors do not accept a fee (they are also entitled to reimbursement for estate expenses)
• The Executor should have good financial sense, but they do not have to be an accountant
• The Executor should be of strong moral character because of the possibilities of financial gain from your estate
• Naming an alternate Executor is always a good idea
• It is generally a bad idea to name Co-Executors in your last will and testament form
• Your Executor does NOT have to be the same person or entity you name as Trustee
• You can name your own adult child to be your Executor, but you will want to seriously consider his or her abilities and emotional strength in handling your estate
• You can name your spouse to be your Executor, but, although it is a common choice, you may consider whether or not you want him or her to be acting in that role at a time when he or she is grieving
• If your estate is very large you may consider a corporate Executor as the Executor in your Will because of the financial strength of a corporate Executor, the lack of financial interest in the overall distribution of your estate and highly level of scrutiny when your estate is distributed