Legal Requirements to Consider When Selecting an Executor

By: Tamara Hensarling Paul, Attorney at Law

The following is provided for informational purposes only and is not, nor should it be construed as legal advice.

In the preparation of your Will, the person you choose to be your executor will play an extremely important role, as that person will be responsible for gathering, securing, managing, and ultimately distributing your money and property when you pass away.

As a result, you should make your selection only after careful consideration regarding who is the best person to fulfill this role. Spouses normally will choose their spouse to serve as executor, but that is not required.  There may be a reason a person does not want their spouse to serve.

An adult child is also a popular selection. Do not just choose your oldest child because that’s what you think is expected. If a younger child, friend, family member, or advisor is more trustworthy or better qualified, that person may be a better choice. The probate court will typically honor your choice, but there are certain grounds that could legally disqualify the person you have nominated as executor. If the executor you have nominated is legally disqualified, the court will not appoint that person as executor.

Characteristics Not Legally Required

There are several factors to consider before choosing your executor that are not addressed in state law. For example, if the person you have chosen is extremely busy, he or she may not have time to serve even if that person would otherwise be a good choice.

Similarly, someone who does not live close by may find it difficult to make the necessary trips to take care of your money and property. It is also prudent to name someone who is reliable and trustworthy, although these characteristics are not legally mandated.

Persons Disqualified to Serve as Executor

Texas has a statute that specifies what could cause a person to be disqualified and unable to serve as an executor.  Any of the following would disqualify the person if the person is:

• incapacitated
• a felon convicted under the laws of the United States or any state of the United States; unless the person has been pardoned or has had the person’s civil rights restored
• a non-resident of Texas who:

* is not a natural person or corporation, and

* has not:

(1) appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate; or

(2) had that appointment filed with the court

• a corporation not authorized to act as a fiduciary in Texas or
• a person whom the court finds unsuitable

You should take the appointment of the executor of your estate seriously and appoint the person most qualified.  You should ask the person you want to name in your Will as executor, or as an alternate executor if the originally named executor is unable or unwilling to serve, and verify that the person is willing to serve in that capacity.

Let Us Help

If you are wondering who to appoint as the executor of your estate, we can help you identify the important factors to consider in making this important decision. The law in our state has its own particular requirements, so we can also help you rest assured that the executor you choose will not be legally disqualified.

Please call us today to discuss this or any other estate planning needs or concerns. We are happy to meet with you over the phone or by video conference if you prefer.