The big executor question: Who to pick?
January 1, 2024 | View PDF
When you were a kid, there was a standard protocol for choosing sides in a pickup game. The two best players—and everybody knew who they were—did some little contest to see who would pick first. If it was basketball, whoever made a shot first got to choose first. In baseball they did that funny thing where they went hand over hand on the bat. And then they took turns picking the players for their team. Of course there were only a limited number of choices for each pick, namely whoever was standing there, and neither of these captains was going to dilly-dally, because the point was to get on with the game.
Picking an executor for your will is not quite so easy.
I have found that this is often the most difficult decision people have to make. And I think it is more difficult in Alaska than in most places for two reasons. First, people here are less likely to be connected to a large extended family, since many of them came here from somewhere else and are disconnected from those distant relatives. If you live here, you might only see your cousins every five or 10 years. If you live in Arkansas, you might see them every week (you might even be married to one of them).
Second, because the options for professional executors are much more sparse here. If you want to name someone who does this for a living, it is slim pickings in Alaska. There are a few trust companies or bank trust departments, but they are really expensive and don’t make a whole lot of sense unless you have at least $2 million in assets. Attorneys or accountants are prohibitively expensive here as well, especially since a lot of it is “grunt work” (like going through storage sheds or holding yard sales), and there just aren’t a whole lot of people who are available to do this sort of thing, the way there are in some places Outside.
So most people have to resort to friends or family. For many of them, the heirs themselves can be named as the executors. This makes sense, since they are the ones with skin in the game. But then, if they are too young, or if they have issues like substance abuse, mental health problems, extreme irresponsibility, or just a really demanding job, obviously you wouldn’t want to name them. And sometimes it is not that they have problems, but that naming one of them would cause tension with the others. I have seen executors whose lives have been made miserable by relatives who resent the fact that they were not the one named, and have gone out of their way to make the executor’s job difficult.
So with all of that in mind, let me suggest three things you should consider when naming an executor. These are beyond the obvious requirements, such as that they are at least 18 years old, not currently in prison, and would be able to get to where the assets are.
You need to pick someone honest. There are a lot of opportunities for an unscrupulous individual to line their own pockets when serving as executor. Assets are sold for cash, assets could be sold to the executor’s friends or relatives for less than they are worth, or assets may just “disappear”.
You need someone who is organized. They do not need to be a financial or legal wiz. There are a lot of complicated tax and legal matters which come up in a probate, but they can seek guidance from an accountant or attorney. If they are unorganized, though, it will be very difficult to construct the accountings which are necessary for probate. I have had unorganized executors, and when they drop off a shoebox of receipts at the end of the process, in which half of the items don’t have anything to do with the estate, and I have to reconstruct everything item-by-item, it will take a lot longer and cost them a lot more.
They must be diligent. Probate takes time. There are built-in delays in the system. First you have to wait for the death certificate. Then you file paperwork with the court, and you have to wait for the judge to get around to signing the order. Then you have to publish notice to creditors, and wait four months to see if anybody makes a claim, even if you know there aren’t any actual creditors. You have to wait at least two months after the creditors period ends before you can close the estate, and depending on what time of year the person died, you may have to wait until the following year, so you can file the deceased person’s last tax return. These built-in delays are one reason why a lot of people try to avoid probate.
Which causes problems, because it gets harder and harder to pick up that file. At the outset, most people have the attitude that “I’m so honored they named me to be executor. Of course I will take care of this”. But then after months go by, and every time they pick up that file they have to think about their loved one who died, it becomes harder and harder. Some people start procrastinating, and the longer you put something off the harder it is to get it back on track.
I’ll throw in a bonus point here: If you are doing a living trust instead of just a will, you need to be careful. Typically, your named back-up trustee is going to be in charge of your finances if you become incapacitated. So if you name that sister-in-law who hates your guts, but you think she would do a great job of handling the estate for your children, and then you have a stroke and can’t manage your own finances, you may have put her in charge of picking your assisted-living home. It might even be in Arkansas.
(Note from the Kenneth Kirk, PC public relations department: We love people from Arkansas. We’re just picking on them today because we know they have a great sense of humor and can take a joke. Please don’t fire us as your attorneys.)
Kenneth Kirk is an Anchorage estate planning lawyer. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult a professional who can take all the facts into account. You can pick which one.