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"Will You Be My Executor?"

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There is a not-so-old saying (which appeared in the 2002 film edition of Spiderman) that goes, "with great power comes great responsibility." Uncle Ben's last imparted wisdom to his nephew Peter Parker may just be the best advice for a potential executor or trustee, as well. Unfortunately, it is often easy to accept these roles too quickly, especially when the asking testator is a close and beloved family member. While we all want the best for our loved ones and want to help them with what they ask us to do, it is important to try to learn all the responsibilities that might be involved before accepting a role as executor or trustee of a loved one's estate.

Executor as Litigator

Many people think writing out a will automatically avoids probate court, but the reality is that many wills are incomplete or end up requiring a trip to the courtroom for some reason. Its the executor then who makes the filings, participates as a party in disputes, opens and closes the estate, and performs other legally-required tasks, with or without an attorney. This might be as simple as one or two appearances, or could lead to extended litigation for years, so it is worth considering before one agrees to perform this role.

Executor as Liquidator

This is the job most people think they are signing up to do: collecting everything and selling it off or transferring it to the heirs. What they often don't consider is the duty to keep an accounting of expenses and income, and the value of each item, as well as the need to pay any income and estate taxes. Then there are special assets: guns have a variety of ownership restrictions, and unique items such as artwork may require appraisals so as to maximize the proceeds from any given sale. Finally when everything is transformed into a liquidated format, the executor must make distributions to the heirs, which can be a big problem if assets are held in IRAs, for example, or if a large collection of non-cash items are given to people expecting to simply cash a big check for their share.

Executor as landowner

Non-cash assets can also include real estate properties. Whether its the primary residence, business locations, summer cabins or timeshares, or other properties, its often the express duty of the executor to act as a caretaker, to insure and preserve the properties, to observe association by-laws and pay property taxes and mortgages, and to act as the owner in any real estate transactions. This is a lot of work for the unwary, and might even be beyond the availability of the unsuspecting.

Decision time

Any of the responsibilities listed above can be a bit overwhelming, even for single people with plenty of time; likewise, an easier estate can be administered and closed by anyone, even busy people with young kids. Therefore if someone asks you to be their executor, it is probably worth it to ask some questions about what you'll need to take charge of, and to consider it carefully before you agree. Please feel free to consult an estate planning and probate attorney if you think you might be getting into something bigger than you expected.