Who Should Be My Executor? Tips for Choosing the Right Person (or Entity)

When people sit down to work on their estate plan, they often start by thinking about what they’re leaving behind - the house, the accounts, that family vacation home we mentioned recently, the sentimental items. But one of the most important decisions they’ll make is not about assets at all. It’s about the people who are involved in the process.

Specifically: Who should be my executor?

For the families we work with throughout Western New York - or really wherever you may call Home, this question and decision is often underestimated. Many people assume the executor role is clear-cut and mostly administrative. Some think it’s simply a formality. Others assume the “obvious” choice is always the right one. But despite what people may assume, what we see time and time again is that when this nomination is taken seriously and considered thoughtfully, those estates are administrated with far fewer hiccups and issues with less time and money spent during the course of probate.

In reality, nominating an executor in your will (especially for will-based estate plans!) is one of the most consequential decisions in your estate plan. The person you nominate will be responsible for navigating your probate, managing legal and financial responsibilities, communicating with all beneficiaries, and making judgment calls. This all occurs during what is often an already emotionally charged time. Considering the consequences of this decision, taking the time to understand the role of executor and then nominating the appropriate person (or entity) is certainly wise!  It can make the difference between an orderly probate process versus a long, expensive and stressful one.  As well, it can make the difference between keeping family relationships intact or causing family relationships to tear apart.

So, let’s take a minute and talk honestly about what being an executor actually involves - and how to actually nominate the right person (or entity) for your situation!

What Does an Executor Really Do?

At face value, an executor is the person nominated in your will who has the first right to petition Surrogate’s Court to be officially appointed based on the various documents submitted at that time.  Once appointed by Surrogate’s Court, the executor can move forward to carry out his/her duties.  These duties include understanding and carrying out the terms of your will subject to the entire estate administration process.  But that simple description doesn’t capture the reality of the many big and small decisions and obligations that this role carries! In order to nominate the right person (or entity) for the job of executor, you need to understand the job responsibilities. 

To start, this entails working to actually get the will admitted to probate.  This, in an of itself, is a process.  Even with a will, there are various requirements and paperwork that must be submitted to Surrogate’s Court.  If the person nominated as the executor has roadblocks at this juncture, it can be for a variety of reasons.  But, certainly even with this beginning period, the person nominated in your will as executor will effect how the estate may begin to unfold. 

In New York State, once the will is admitted to probate, the executor is responsible for, in addition to other things:



• Identifying and safeguarding your estate assets
• Managing and handling your assets appropriately (including real estate, bank accounts, investments, business interests, personal property, pets, etc.)
• Assessing and paying appropriate estate debts owed
• Paying various estate administration expenses
• Filing various tax returns and paying appropriate taxes
• Communicating with beneficiaries and interested parties
• Filing various documents with Surrogate’s Court throughout the entire estate administration process
• Handling potential litigation or issues during the course of the estate administration
• Providing an accounting or accountings to appropriate parties
• Working with professionals to handle the various estate administration matters
• Obtaining necessary documents from beneficiaries
• Making appropriate distributions at the appropriate time within the estate administration process
• Handling final matters, including final tax returns and closing the estate
• Dealing with potential issues after closing the estate (if that does occur!)

The New York State Unified Court System describes probate as the process used to “determine the validity of a decedent’s will and to appoint a legal representative to administer the estate.” Where there is a will that nominates an executor and that person or entity then becomes appointed by Surrogate’s Court, that “legal representative” is then the duly appointed executor - and the court expects them to act carefully, transparently, and in the best interests of the estate. Contrary to popular opinion, this is not a passive role at all! It requires time, organization, emotional resilience, and a willingness to work with professional help.

Why the “Obvious Choice” Isn’t Always the Right Choice

Many people default to naming a spouse, eldest child, or closest family member as their executor. Sometimes that makes sense! Sometimes… it doesn’t. We often remind clients: being the executor is not just a compliment or honor - it’s a tough job. And like any job, the right candidate depends on the responsibilities involved.

Here are a few common assumptions that may ring a bell as your venture down your own path of nominating an executor:

“My oldest child should do it.”

Unfortunately, age doesn’t guarantee organizational skills, maturity, emotional neutrality, or availability.

“My child who lives closest should do it."

Proximity can help, but it doesn’t help that child get along with siblings or other family members. WHO the person actually is matters!

“My spouse is the first choice, of course.”

Potentially, if a spouse is in declining health or experiencing cognitive decline, it’s important to consider other options.  If a person is nominated as executor, but, cannot act, he or she would need to sign what’s called a “Renunciation” stating he/she does not want the job!  But, here’s what so important - if a person lacks capacity (or refuses) to even sign the legal document, there will be further complications.  The court may need to appoint a “Guardian ad Litem” who would act on behalf of a person who cannot act for themselves.  This is an attorney who investigates matters and reports back to the court.  Or, potentially, this will cause another party to file papers with the court, such as a cross-petition for probate, which leads the estate down the path of confusion and further issues.  Again, nominating an appropriate executor to act is just so critical when it comes to probate.  Your will must be up-to-date with your executor nominations!

"Everyone gets along - it’ll be fine.”

Even close families can struggle once grief, money, and legal timelines are thrown into the mix. Assuming that everything is just going to work out isn’t a direct path forward, and can lead to significant family conflicts, time and thousands of dollars spent, and often a probate that wasn’t what you had actually thought would happen.

The entire process of estate administration in places like Erie County and Niagara County, even under the best circumstances, can take a good year - and sometimes longer. If the executor is unprepared, overwhelmed, or in conflict with other beneficiaries, the process can stall quickly.

Key Qualities to Look for in an Executor

Rather than focusing solely on family roles, it is almost always wiser to focus on skills and temperament. Here are the qualities we encourage people to consider when making this decision.

1. Trustworthiness

This may sound obvious, but it’s paramount. An executor has access to all of your sensitive information and significant authority with your accounts. The court expects them to act honestly and in good faith.

2. Organizational Ability

Executors are responsible for paperwork, deadlines, records, and documenting all of the transactions and various details of numerous estate matters. It’s crucial the executor be able to provide pertinent information to his/her attorney.  There will be court filings, financial statements, correspondence, receipts and so on that will come into play. Someone who struggles with organization may find the role overwhelming. 

3. Emotional Steadiness

The executor is often the point person for family questions, frustrations, and concerns. This can be especially challenging if disagreements arise. The ability to remain calm and level-headed is critical.

4. Willingness to Ask for Help

No one is expected to know what goes into all that goes into probate or estate administration. A strong executor understands the importance on relying on professionals - including attorneys, accountants, realtors, appraisers and so on - rather than trying to “figure it out” alone. Who is your relative or person that is always willing to ask for directions?!

5. Availability

Serving as executor takes time. Someone with demanding work obligations, health issues, or frequent travel may not be in the best position to serve, even if they are otherwise an ideal candidate.  As well, if they are unable to travel or need assistance with getting to and from places (ie: attorney’s office, banks, etc.), this can cause problems within the estate administration process.  That item that needs to get done gets harder and harder to handle!

6. Health and Cognitive Abilities 

If a person lacks the necessary mental capacity to serve or, potentially, will not be able to effectively serve as the executor for the duration of the estate administration, this can cause further issues.  When a person cannot act on his/her behalf due to a lack of capacity or other disability, the court may appoint a “Guardian ad Litem” to act on that person’s behalf.  This is, in itself, a process, necessitating further requirements, delays and fees for the estate.   As well, if an executor is unable to complete the estate administration process, a successor executor would need to be appointed by the court; the successor executor who would need to review the actions of the prior executor.  All of this causes further time, costs and delays in probate.

7. Basic Eligibility Requirements

New York law has its’ own basic eligibility requirements which include:

• Must be at least 18 years of age
• Must be legally competent
• Cannot be a “non-domiciliary alien” (generally, a person who is neither domiciled in New York nor a United States citizen) unless other requirements are met, with the court’s discretion
• Cannot be deemed “unfit” by the court (this could be due to substance abuse, dishonesty, lack of understanding, etc.)
• Cannot otherwise be disqualified (this could be due to the inability to read/write English or potentially a person with a felony conviction with adverse implications to the estate)

Family Dynamics: The Issue No One Wants to Talk About

Even in families with the best intentions, dynamics can shift quickly after a death. Longstanding tensions may resurface. Financial stress can amplify emotions. Misunderstandings can turn into full-blown disputes.

We often see challenges arise when:

• The executor is also a beneficiary and cannot remain neutral
• Siblings disagree about timing or fairness of distributions (even personal items can be a major source of dispute!)
• One person feels excluded from decisions
• Communication isn’t consistent or clear

These situations don’t necessarily mean someone has done anything wrong. They simply reflect the reality that probate is both a legal and an emotional process.

Nominating an executor who can communicate clearly, handle various documentation with estate matters, and maintain transparency is often one of the most effective ways to reduce conflict, even if you know your family is ripe with conflict!

Should You Consider a Professional Executor?

In some cases, naming a neutral third party - such as a trust company, bank or professional fiduciary - can make sense! This is more common when:

• The estate is complex
• Family relationships are strained, or you have distant family members
• You have multiple properties or business interests
• You are concerned about the executor acting in a neutral fashion
• You do not trust or are concerned about potential people acting as executor
• Family members or others you would consider to act as executor travel frequently, live overseas or are otherwise unable to travel (and you need to assess how this would affect the estate)
• You do not have individuals who would meet the basic eligibility requirements to act as executor
• No suitable family members or other individuals are available

A professional executor brings experience and neutrality, but also comes with required commissions.  A family member who is acting as an executor may also take commissions, but, sometimes declines to do so.  This decision on nominating an executor most suitable for your situation is best made with the guidance of an estate planning attorney who understands both the legal and family considerations involved.  Allowing yourself to have an honest conversation with your estate planning attorney regarding the executor nominations can make a critical difference in how your estate unfolds - and, loved ones’ relationships stay intact!

What Happens If You Choose Poorly - or Don’t Choose at All?

If the executor you have nominated is unable or unwilling to serve, or if you don’t actually nominate one or there is a lack of an alternate or alternates nominated but needed, there will be a need to fill in that gap.  With this gap in the role of executor, appropriate parties can petition the court requesting who that person or entity should be with the court then making its’ own determination. That person or entity may not be who you would have chosen.

According to Cornell Law School’s Legal Information Institute, when a person passes, if no executor was named or if they are unwilling or unable to serve, the court appoints a fiduciary to administer the estate. 

All of this can result in delays, added costs, and outcomes that don’t align with your intentions. Therefore, while it isn’t like your estate just disappears if you don’t nominate an appropriate executor (and appropriate alternate executors), the estate will have further complications. The estate certainly may not be carried out the way you had imagined and, as stated throughout this blog - will come with further delays, time and costs! 

Some Extra Questions to Ask Yourself

As you think through this decision, here are some of the top general questions we ask our clients who are going through the process of nominating an executor:

• Who do I trust to act responsibly and transparently?
• Who is organized, and can handle various paperwork and details?
• Who can manage family communication AND remain calm?
• Who is actually willing? (some people might say no!)
• Who will ask for help (from legal, accounting and other professionals)?
• Who should I name as appropriate alternate executors?

And just as importantly: Have I talked to these persons about the role?

Serving as executor is a significant responsibility. A conversation ahead of time can prevent surprises later.

Nominating an Executor Is About More Than Convenience

Your executor plays a critical role in how your estate planning intentions are carried out - and how your loved ones experience the probate process. This decision deserves thoughtful consideration, so make sure you take the time to consider all of your options!

If you’re working on your estate plan or revisiting an existing will, we’re always happy to help you think through this choice carefully. Whether you’re in Williamsville, Amherst, or the greater Buffalo area, understanding how executor selection fits into the bigger picture of estate planning and probate can save your family time, stress, and unnecessary expense down the road.

To learn more, visit our Estate Planning or Probate pages, or reach out to schedule a consultation. We’re here to help you make informed decisions that truly support your family - during life and beyond.