Your executor selection should be made with great care and consideration. In fact, failure to name the proper executor is really creating disaster by document. At the most basic level the following questions should be considered when selecting an executor:
- Is the individual willing to serve?
- Can the individual or entity be trusted?
- Geographic Proximity? – are they close enough to serve?
- Is the individual or entity responsible?
- Is the individual organized?
- Is the individual tough?
- How well do you know the individual, or entity?
- Are they physically or mentally able to serve? – Will they be of sound mind and physically able to serve at the time they are needed?
- Can they qualify to serve in the role?
- Can they qualify for a bond?
- Do they have outside activities that will prevent them from serving in the role? – Do they have enough time?
- Do they have any experience in matters that they will need to assist with like financial, medical or legal? They can obtain outside assistance, but do you want them to?
- How well do they handle conflict and stress?
- Is the individual, or entity otherwise disqualified?
- Should you consider an institutional trustee or personal representative?
Your Executor Selection is Just Your Suggestion
The executor named in the Last Will and Testament is merely the testator’s suggestion. Just because you are named as an executor does not mean that you are automatically the executor or that you magically have the power to act. In fact, you must qualify to act, take an oath, and post a bond if required by the court. The Texas Estates Code governs who is qualified to act as an executor in Texas. Texas Tex. Est. Code § 304.003 provides the following:
- 304.003. PERSONS DISQUALIFIED TO SERVE AS EXECUTOR OR ADMINISTRATOR. A person is not qualified to serve as an executor or administrator if the person is:
(2) a felon convicted under the laws of the United States or of any state of the United States unless, in accordance with law, the person has been pardoned or has had the person’s civil rights restored;
(3) a nonresident of this state who:
(A) is a natural person or corporation; and
(B) has not:
(i) appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate; or
(ii) had that appointment filed with the court;
(4) a corporation not authorized to act as a fiduciary in this state; or
(5) a person whom the court finds unsuitable.
See Tex. Est. Code 304.003.
Your executor must meet these qualification points if they are going to be able to serve in the role of executor. It is important that the executor selected meets both the needs of the testator as well as the statutory requirements of the state where the testator is located. Adhering to both will insure that your wishes are carried out and the terms of your Last Will and Testament will be fulfilled.
The following is for informational purposes only, shall not constitute legal advice and does not constitute the establishment of an attorney-client relationship. More importantly, the following information is not a substitute for a Board Certified Texas Estate Planning & Probate Attorney. You should always consult with a qualified attorney.