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Selecting an Executor

Friday, October 03, 2014

Many people automatically select their spouse or oldest child as executor of their will. The job of the executor is an important one and although some spouses and adult children handle the job competently, you should consider the duties of the executor and their abilities before automatically assuming that a family member is the best choice to administer your estate.

The executor is a fiduciary with respect to the succession and has the duty of collecting, preserving and managing the property of the succession. He must at all times act as a prudent administrator. He can give a special power of attorney to another person to act for him. However, he must actually qualify to be executor by filing the oath of office and any required bond. An out of state executor is allowed if he appoints a person in this state to be his agent.

A succession representative may be removed is he has become disqualified, has become incapable of discharging the duties of the office, has mismanaged the estate, has failed to perform any duty imposed by law or by order of the court, has failed to appoint the agent in state, or has failed to give notice of his appointment when required. The court may order the representative to show cause why he should not be removed. The court can order the representative removed on its own motion or on the motion of any interested party. Removal does not invalidate acts done by the succession representative prior to removal.

There are many cases in which executors have been accused of improperly administering the estate. Those include: Succession of Mills v. Vulevich, 136 So3d 317, (La. App .5th Cir. 2014): The deceased’s son filed a request for an accounting and to remove the executrix as well as for improper administration of the succession. The son alleged that executrix allowed two properties left to him to fall into disrepair. The executrix denied that she acted incorrectly, arguing that she could not repair those properties with estate funds to the detriment of the other heirs. However, she had used estate funds to repair properties left to her. The court found that the executrix was liable in special damages for the diminution in value of the properties left to son but denied son's request for costs to restore the properties to their pre-succession value and also denied his claims for lost rental and investment income, reasoning that Hurricane Katrina contributed to those losses and the properties never had any flood insurance, and that all of the parties had contributed to the eight years of litigation involving the succession. The son also received his pro-rata share of the executrix fee but the executrix was entitled to recover all of her attorney's fees in defending the claims from the succession.

There are many more instances of executors not handling the estate correctly. You should be sure that the person you name executor understands the job and is capable of carrying out your wishes. We can help you select the best person for the job.