Criteria for Estate Executors??

[BOSSHOG]

My wife and I have wills but we now want to make a will together if we both die at the same time. (Possible, not probable) but we want our assets divvied up our way. We are considering asking our oldest Nephew to be our executor (we have no children.) He is 34 years old, married, settled down and a pretty sharp "kid." Most of our assets will go to our nephews and nieces. Does this sound like a reasonable arrangement? Any input would be greatly appreciated, like should we go with a lawyer or non family member instead.

[wakemeupwhenitsover]

1. Our executor is an old, old friend.

We thought he would be better than either of the boys. We didn't go with the lawyer since he can & would bill the estate for his time. At whatever he charges per hour that could add up to a chunk. I actually think that there's some limit, but I'm really not sure.

[BOSSHOG]

2. Thanks very much

I think we will finalize our production and have our lawyer take a look at it, then proceed with our nephew. Don't want a lawyer to get too big a chunk of our pie.

[wakemeupwhenitsover]

5. When I read your OP I assumed that you were updating your

wills & using a lawyer. I would definitely get one. The cost wasn't too bad. I think we paid about $500 several years ago. Of course, he tried to sell me his mutual funds. blech. But I just told him that I had everything under control & we just needed our wills.

You might want to look into 'who pulls the plug' stuff at the same time. DH & I pull the plug for each other & if a catastrophe strikes & we both end up in ICU at the same time then the oldest has to make the decision. I told him that if he rips it out just to inherit I'll come back & haunt him.

[A HERETIC I AM]

3. Here is a link to the Mississippi Code

http://michie.lexisnexis.com/mississippi/lpext.dll?f=templates&fn=main-h.htm&cp=

Click the folder and scroll down to "Title 91 Trusts and Estates"

Chapter 7 is "Executors & Administrators"

Thats the Legalese, Boss.

As to whether or not a relative (Your Nephew) or a disinterested 3rd party should serve as executor is really a matter for you and your wife to decide. It is apparent that the larger the estate, the more sense it makes for a 3rd party to administer the will primarily because ...well...greed makes people act in a strange way, sometimes. Also, it is sometimes the case that what needs to be taken care of by an executor can be quite simply overwhelming, particularly in a time of grief - like right after the both of you pass away. This is another reason having a disinterested 3rd party might be more appropriate.

An example of the duties of the executor, according to Mississippi law (According to the above linked website, anyway) is as follows;

§ 91-7-47. Rights and duties of executor or administrator with will annexed.

(1) Every executor or administrator with the will annexed, who has qualified, shall have the right to the possession of all the personal estate of the deceased, unless otherwise directed in the will; and he shall take all proper steps to acquire possession of any part thereof that may be withheld from him, and shall manage the same for the best interest of those concerned, consistently with the will, and according to law. He shall have the proper appraisements made, return true and complete inventories except as otherwise provided by law, shall collect all debts due the estate as speedily as may be, pay all debts that may be due from it which are properly probated and registered, so far as the means in his hands will allow, shall settle his accounts as often as the law may require, pay all the legacies and bequests as far as the estate may be sufficient, and shall well and truly execute the will if the law permit. He shall also have a right to the possession of the real estate so far as may be necessary to execute the will, and may have proper remedy therefor.

(2) In addition to the rights and duties contained in this section, he shall also have those rights, powers and remedies as set forth in Section 91-9-9. The provisions of this subsection shall stand repealed from and after July 1, 2008.

(Bold emphasis mine)

If you both have wills and they have been updated and generally agree, perhaps a Trust would be the way to go. You would need to discuss this with an attorney to be sure you have the proper answers relevant to your situation.

There are a lot of questions you have to discuss with your wife for your estate planning to really be complete, such as;

1) Do you have a Trust?
2) Is one even needed in your state?
3) Even if it isn't needed, would it be helpful?
4) How are your assets currently titled?
5) Is there significant value in your estate in items with a limited market or of subjective value? (Art and antiques, for instance)
6) Is there significant value in marketable securities or cash or in the value of the estate as a whole in which a heavy tax liability may be owed?
(If the answer to #6 is "yes", are there any life insurance policies in force?)
7) Are you charitably inclined? If so, is the method in which any charities are to receive distributions clearly spelled out?
8) If there is a large sum to go to charity, would a Charitable Remainder Trust be appropriate?
etc, etc, etc.

One thing stood out when i was looking through those MS statutes. Section 91-7-19 says;

§ 91-7-19. All interested may be made parties.
Any proponent of a will for probate may, in the first instance, make all interested persons parties to his application to probate the will, and in such case all who are made parties shall be concluded by the probate of the will. At the request of either party to such proceeding, an issue shall be made up and tried by a jury as to whether or not the writing propounded be the will of the alleged testator.

I am by no means a Lawyer, but it seems to me this provision leaves the door wide open for anyone who can claim to be an "interested person" to come forward and contest the will. A Trust might just remove that possibility.

See an Attorney, Boss!

Hope that helps.

[BOSSHOG]

4. Thanks Heretic

As usual your two cents worth are invaluable. I feel so worthless not researching for myself as you have for me. I'm gonna have to act soon because my wife is on my butt. And we do have a slight difference of opinion about dispersion of assets. I wouldn't say we are rich but I'd certainly like to be in our will. I have an incredible Mike Schmidt baseball card collection, amongst other things.

Maybe the wife and I will just travel separately in the future.

Thanks Again My Friend.

[A HERETIC I AM]

6. LOL on the "Travel seperately"

Naaah....just take cruises!

Best of luck, however you proceed.

[trof]

7. I'm not a lawyer either, but...

Instead of a new 'joint will' it might be easier and cheaper to add a codicil (sp?) or amendment/addition to each of your wills stating what you want to happen with your assets should you both die in a common accident or some such.

You might also give your nephew a list of what he should do when he becomes the executor.
A couple of things I've learned:
He will need more certified copies than he thinks of death certificates. He should get several.

Also, all heirs should receive copies of the will(s) when the time comes.

The estate should reimburse him for all out of pocket expenses and he should provide timely accounting of these to all heirs.

Good luck.

[BOSSHOG]

8. Thanks Trof

thats an interesting idea and it sounds like the way to go; less wieldy. We don't want our stuff to go to probate if we go at the same time.

[eilen]

9. my dad chose me as executor

and I have been as fair as I can be. I had the option to take a fee but I declined. There is a lot to it and his will had to be probated. Speaking as his daughter, I would have preferred he just kept the insurance policy which would pay for his funeral and associated expenses and had liquidated most everything else and enjoyed himself while he was alive. He never took the trips he wanted to take, he didn't get his dental appliance replaced because he thought it was too much, he lived very frugally but did not allow himself to go beyond his strict budget because he was always worried about money. I'm glad he chose to leave everything to his kids but really, I'd rather he had gifted us while he was alive and could see the benefits and received the gratitiude. He should have sold his condo and rented near one of us and had a more familiar relationship instead of relying on the odd holiday when I could get time off.

He could have supported the causes he loved without worry.

I hate to say it but the Die Broke concept really appeals to me after my experience with my father's death.

[BOSSHOG]

10. Thanks very much for the perspective

I'm reminded of a retirement seminar I went to shortly before retiring from the Navy. An Insurance rep made a presentation and said he could fix us up with the perfect insurance policy. He only needed to know two things, when are you going to die and when will your beneficiary die. We don't intend to be frugal for the heirs sake but we want to have a nice nestegg to keep the engine running in case one of us decides to live to be a 100 or more. My Dad had his funeral all paid for and planned out and we had to do absolutely nothing relative to it. I did appreciate that aspect of his planning.