What Is an Executor?
What Is an Executor?
An executor is a person who carries out, or executes, the terms of a last will and testament. He or she is named in the last will and testament. (You will often see the term “personal representative,” which refers to both executors named in wills as well as people administering estates that did not have wills in place.) When somebody qualifies as an executor, their general duties include marshaling the assets of the estate, paying any legally enforceable debts, filing income tax returns, and distributing the remaining assets of the deceased person.
To qualify as an executor in the Commonwealth of Virginia, the person named in the last will and testament must be qualified by the court. He or she may need to be bonded, if required. The executor may be a resident or non-resident of Virginia; however, if they are a non-resident, they will be required to bring a resident of Virginia with them to co-qualify. They must also establish to the clerk of the court that they are capable of fulfilling the duties of an executor.
In some circumstances, institutions such as banks or trust companies also serve as executor.
What Not to Do
I sometimes have clients come in with an old will that gives their entire estate to one person, with the expectation that the person will then turn around and distribute everything to other family members. I cringe when I see this setup, because their previous attorney clearly wasn’t listening to what the client actually wanted.
What the client meant to happen was for the person they named to serve as their executor – they just didn’t have the “legalese” to communicate that to the attorney.
I explain to the client that leaving everything to one person effectively disinherits the very people they are trying to leave their estate to, because the named person can legally refuse to give the estate to those people. I describe the role of the executor and explain that under their old will, the one named person could run off with everything.
Once I have explained the implications of their old will, the client usually asks me to draft a new will that accurately reflects their wishes, and everyone leaves satisfied that the client’s wishes are accurately documented. But imagine what could happen if they did not have a new will drafted. Don't let this be you.