Things to Consider When Naming or Serving as an Executor in Virginia
If you choose to write a will, the person who is has the authority to manage your estate’s affairs after your death is called an executor. Executors can be any competent individual over the age of 18 and may sometimes also be a beneficiary of the will. An executor can be one person or more than one person acting together. When there is more than one executor, they can each act independently or there can be a requirement that they act unanimously (usually this is not recommended). In addition to laypeople, professionals such as lawyers or accountants can serve as executors. Even entities (like a bank or a trust company) can serve as executors and sometimes that arrangement is both necessary and desirable, depending on the facts of a particular matter.
When a person dies with a will, the will must be probated (presented to and accepted by the court). At the time a will is probated, an executor(s) appears and takes an oath to qualify to serve in that capacity. This step is not optional and except for a few limited exceptions, no steps should be taken for the estate by an executor before they have received a certificate of qualification. If they do not follow this rule, the executor can be held personally liable, which means the risk and financial obligation belongs to them personally and not the estate.
There are various reporting requirements for executors and most of these are administrative in nature. Although specialized knowledge of the law and accounting are not necessary, it is important that an executor be organized and to know when to ask for help. There are financial penalties for not following the laws and the rules of court. There can even be criminal penalties if an estate is not administered in a way that is timely and correct.
When choosing an executor, a testator should pick someone that will be able to determine what the estate owns and to carry out the instructions in a will. Unlike a trustee, an executor does not have a great deal of discretion in administering an estate. Instead, they are limited to following the formula spelled out in the last will and testament and related instructions (if they exist and are properly incorporated into the will). The executor is also responsible to reporting these findings to the Commissioner of Accounts and ensuring that certain filings are made with the Circuit Court.
The person writing a will should also consider whether the beneficiaries know the executor or if there will be potential difficulties in the administration of an estate. Someone who is ill or elderly may not be a good choice, depending on the facts and a particular family dynamic.
No one is required to qualify and before agreeing to serve as an executor, a person should understand something about the estate and the general requirements of the position. Although state law allows for an executor to be compensated for the work of administering an estate, some estates do not have sufficient assets or there may be problems with creditors. Remember, too, that many assets can pass outside of probate and so qualifying may not be necessary. There are many variables associated with choosing or being an executor and it is wise to consult a qualified attorney before doing either.