How do I choose an Executor

Texas law does not allow you to appoint a minor, someone who is incapacitatated or a convicted felon. The court can also reject someone it deems to be unsuitable. If you choose someone who does not live in Texas, they will have to appoint a resident for service or process. Other than that, you can appoint whoever you want.

You should choose someone you trust to take all of the actions described above, who will follow your wishes and be fair to all of the beneficiaries, who is strong enough to deal with family members who might be demanding or uncooperative and yet can be sensitive when needed. The process can take a few months, so you also want someone who will communicate with beneficiaries who might want to know why it is taking so long.

You should choose someone who is willing to serve, had the time to spend, and is able to deal with financial institutions, attorneys, and (possibly belligerent) family members.

You do not want to name someone who is so domineering that the other beneficiaries may just go along to avoid any hassle. You don't want to name someone who may try to reinterpret your will because he knows what you 'really' wanted, who may ignore a side letter setting out personal bequests because she knows you really wanted her daughter to have the diamond ring or the china collection, who might try to settle old scores, who will favor himself or his children over other beneficiaries, or who tends to be dismissive of others' concerns.

If you are leaving everything to one person, then that person is the obvious choice, assuming he or she is not a minor or too elderly to want the hassle or someone for whose benefit you plan to set up a trust. Most married people choose their spouse, and name an adult child as successor executor if the spouse cannot serve. Single people with adult children usually choose one of those adult children. Often more than one adult child wants to be named – or you aren't sure which one to name, but you probably know who will end up doing all of the work. Assuming he is trustworthy, responsible and fair, this is usually the person you should name. Common choices for those with no spouse or adult children are siblings or parents.

Co-executors

Often people with more than one adult child think they should name them all as co-executors. Generally it is not a good idea to name two or more executors to serve together. They will have to all go to the hearing to be appointed and take the oath. They will all have to sign on the bank account, purchase and sale contracts, deeds, tax returns, etc. They will have to agree on investment decisions. They may disagree as to whether to real estate or as to what a reasonable price is. They may disagree on which realtor to hire. This can make the process much more cumbersome – and much slower. They may also disagree as to how quickly to begin the probate process. One may feel it is disrespectful to start it too soon and another may want to take care of matters as quickly and efficiently as possible. If your adult children can't agree on who should serve as executor, then that is probably a sign that they won't be able to agree when acting as executors.

However, if you are concerned that one won't deal fairly with the others – even if they won't see it that way – then you should either require that person to post a bond, name someone else as executor or name co-executors to provide oversight. If your children really don't get along or can't be trusted to treat each other fairly, then you might want to name a neutral third party – preferably someone all of the beneficiaries will trust to be honest and fair.

Potential Liability of an Executor

The executor can be held liable for damages that result from his or her failure to take certain actions within the time period set out in the Texas Estates Code. For example, if the executor fails to publish notice in the newspaper or send notice to secured creditors timely, he or she may be liable for damages that result. He can also be held liable if he fails to use ordinary diligence to collect amounts due to the estate or recover property of the estate. The executor can also be held liable for breach of fiduciary duties to the beneficiaries. In each case, someone has to suffer damages and sue to recover damages.

Fiduciary Duties of the Executor:

The executor has a fiduciary duty to the beneficiaries of your estate, which means he owes them a duty of loyalty. He must manage the assets of the estate solely in their interests - even at the expense of his own interests. He must also exercise reasonable care and skill in managing the estate, taking the same care with the assets of your estate as he would with his own and investing estate assets as a prudent investor would. He is not permitted to benefit at the expense of the beneficiaries, and cannot commingle his own funds or asset with those of the estate. He also cannot self-deal, which means he can't borrow from, lend to, buy assets from or sell assets to the estate. Even if a will explicitly permits the executor to take some or all of these actions, which wills often do, the executor should exercise extreme caution when doing so. The executor also has a duty of impartiality when there are multiple beneficiaries, meaning that he cannot favor one beneficiary over another. He must maintain accurate accounts of all assets received and all amounts paid out from the estate and be prepared to provide access to those records to the beneficiaries.

If the executor breaches his fiduciary duties to the beneficiaries, he can be held liable for the damages that result.