Who Is the Best Person for Executor?
Several critical estate planning documents give another person—known as an agent or personal representative—the legal right to act on another person’s behalf. They include wills, trusts, powers of attorney and advance health care directives, as described in a recent article titled “The nomination of trustees, executors and agents” from Lake County Record-Bee.
Your will is only activated after you die. The will and executor then have to be approved by the court. Many people think being named as an executor confers instant authority, but this is not true. Only when the will has been deemed valid by the court, does the executor have the power to act on behalf of the decedent.
The best person to serve as an executor is usually a person with good organizational skills, honesty, competency, and a person willing to do the right thing and administer the estate according to law and the will. A bad person is usually one who would act selfishly or has poor organizational skills or is a procrastinator.
After death in the probate proceeding, the court is petitioned for a court order appointing the executor and then letters testamentary are signed by the appointed executor. An executor then becomes active as an officer of the court with a fiduciary duty to act as personal representative of the decedent’s estate for the estate probate while it is being administered under Louisiana probate law.
If the named person declines to serve, the will should have a secondary person named as executor, who can then request the appointment be validated by the court. Others can petition the court to be appointed. However, it is best to name two people of your choice in your will.
If the decedent dies without a will, the person who represents the estate in the probate proceeding is call the “administrator”. Under Louisiana law, the court is required to take into consideration an order of preference for the administrator. The surviving spouse is generally preferred, next the children, then more distant relations such as siblings, then neices and nephews. For any of them, the administrator has be duly qualified to serve as the administrator.
A trust is a separate legal entity with a trustee who is in charge of the trust and its assets. If a revocable will is created, the trustee is usually the same person who has the trust created, also known as the settlor (or grantor). For certain types of irrevocable trusts, but not all, the trustee is often someone other than the settlor (or grantor). Keep in mind that it is a common misconception that the establishment of an irrevocable trust means that you would have to relinquish authority over the “stuff”, the assets in the trust. For both, the appointment as trustee (or successor trustee) does not become official until the appointment is accepted, usually through signing a document or by the trustee taking action on behalf of the trust.
Just as an executor might not accept their role, a trustee can decide not to accept the nomination. However, once they do, they have a fiduciary duty to put the well-being of the trust first and manage it properly. You can’t accept the role and then walk away without serious consequences.
Powers of attorney are used while a person is living. The power of attorney’s effective date depends upon what kind of POA it is. A durable power of attorney is effective the moment it is signed. A springing POA sets forth terms upon which the POA becomes active, usually incapacity. The challenge with a Springing POA is that approval by the court may be required, usually with proof from a treating physician concerning the person’s condition.
Similarly, the health care power of attorney appoints a person who acts on behalf of another as their agent for health issues. They can decline the position. However, once they agree to take on the position, they are responsible for their actions.
If the POAs decline to serve and there is no secondary person named, or if all named POAs decline to serve, the family will need to apply for an interdiction (also called a “conservatorship” or “guardianship” in other states). This is a lengthy and expensive process requiring a thorough investigation of the situation and the person who needs representation. It can be contested if the person does not want to give up their independence, or by family members who feel it is not needed. The person chosen by the court under Louisiana law is called the “curator”. The court must also appoint an “undercurator” whose job it is to keep and eye on the curator.
These are commonly used terms in estate planning. However, they are not always understood clearly. Your estate planning attorney will be able to address specific responsibilities and requirements, since every state has laws and appointments vary by state.
BOOK A CALL with me, Ted Vicknair, Louisiana Board Certified Estate Planning and Administration Specialist, Louisiana Board Certified Tax Law Specialist, and Louisiana CPA to learn more about estate planning in Louisiana, incapacity planning, and Louisiana asset protection.
If you liked this article, “Who Is the Best Person for Executor?” read also these additional articles: What’s the Most Important Step in Farm Succession? and Is ABLE Account the Same as Special Needs Trust? and Pay Attention to Income Tax when Creating Estate Plans and How Changes to Portability of the Estate Tax Exemption May Impact You
Reference: Lake Country Record-Bee (July 30, 2022) “The nomination of trustees, executors and agents”
