How to Choose an Executor or TrusteeCreating a will is one very important step to ensure things go smoothly when you die. Please be very careful who you name as your personal representative in a will. Choosing the right someone to administer your wishes can be as important as the document itself.

When you are creating a will, the lawyer is going to ask who you want to act as personal representative. The personal representative is the individual who does all the leg work after you are gone. He or she may need to pay your taxes, manage any businesses you own, represent your estate at court, and distribute or liquidate your assets. Because of all these responsibilities, there are traits that you will definitely want to look for in whom you appoint as your personal representative. Consider the following traits:

  1. Good with money.  The personal representative will be dealing with your bank account, life insurance money, taxes, selling assets, and many more money related issues.
  2. Trustworthy. You don’t want the personal representative running off with any money that frees up after you have died.
  3. Location.  The farther away the personal representative lives from where you and your assets are, the more difficult the required leg work will be.
  4. People skills. You want someone that has a good relationship with other members of the family. Any death of a loved one will create an emotional strain. You do not want your representative to add to that strain for the family.
  5. Organized.  All the separate tasks involved can be a little too much for some people to handle. If the personal representative can be organized, the probate process will be much easier. The representative is going to have to catalog all of your belongings and so being detail oriented and organized will be very important.
  6. Willing and able. All the skills in the world won’t help if they won’t make or don’t have the time to do it.

The perfect personal representative would have all of the traits listed above.  Unfortunately, not everyone does. You may need to weigh the advantages and disadvantages of different individuals close to you before coming to a decision. Make the best decision you can at the present, and be sure to change your will to name a different representative if circumstances indicate a need to do so.

You can list multiple people in your will to possibly act as personal representative. The first person on the list should be the person who best fits the traits listed above. After that first person you can list back-ups in case the first person is unable to act. This allows you to include all of your children in the will as potential personal representatives without their necessarily needing to actually act as personal representative.

These same traits apply to picking a successor trustee for a revocable trust. You will usually want to have the same person act as your successor trustee and personal representative because this can make administering your estate much easier.  However, you can also pick different people for each role if that is what you would like.

One last point needs to be made here. Some people may have heard that revocable trusts can replace the need for a will. This is not correct. Even if you have a trust you also need a will. The two work together to accomplish your wishes. For example, a trust cannot name a guardian for your minor children. The will is needed because guardianship appointment always involves the court. The guardian for your children will not necessarily be the same as your trustee or your personal representative, though they could be. As is true for the personal representative listing in the will, you can also have a hierarchical listing for who would care for your minor children in the event of your untimely death. You can always revise your will to allow for changes that might affect this listing or the need for guardianship at all as they reach adulthood.

  1. I am married should we each have a Will? If I die everything except some personal things that I want to go to someone would be my husbands and the same with him. Does everything (material things) need to be listed in the will, to who they go to and the rest can be sold?

    • Jami,
      Yes, both you and your husband need a will. If you want specific items to go to a specific person you will need to list those items and specify who they go to. As for the rest you can just say that what ever is left is divided or given to your husband, kids, other who ever you want. They can then decide if you they want to do with it. They can sell or hold on to it. If you want the items sold, then you would need to specify that you want them sold in the will.

  2. I have no family members that I can comfortably select as my Executor. How can I find a professional Executor that has good standing and reputation within the San Jose,CA probate court system? Or should I not nominate anyone and let the court system make the selection after my death?

    • Thomas,
      You will probably need to find an attorney that specializes in probate that is willing to act as Executor. The attorney will need to be younger then you (don’t want them to retire before you die) or a firm that will continue for the foreseeable future. If you leave it up to the court then they are just going to take anyone that is willing to do it, which would probably be a family member that you are not comfortable with. The court cannot start probate by itself. Someone has to petition the court to start the probate. If there is no one nominated then anyone can petition the court to start the probate.

    • And Thomas, your selections and decisions are almost always better than the court’s. Banks often act as the successor trustee, but seldom as the executor. An attorney would act, but I will guarantee that they will not settle the estate until every dime of the estate has been spent on legal fees, then somehow magically the estate will be settled when the money runs out. Friends that could be suckered might be an executor, but generally without family members that can act, there is a problem. Put everything into a living revocable trust, and name the bank as successor trustee.

  3. what if I did a will with leaglezoom and never had it signed or notarized and 3 to 4 years later i decided to change a few things on my own from copies i made from the first will but this time I made it a self proving will with 2 witnesses and a notary. Is it now a good will or do I need to register it with the state? i’m in utah and someone suggested that. I never heard of registering a will?. thank you

    • Dan,
      You don’t register a will with the state. Hopefully, you will get a living revocable trust and not need to use the will in probate. You could use the LegalDoom language. Just get my personal planning set and do the trust, wills, durable power of attorney and everything else for yourself.

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