Executor of a Parent's Will: Choosing One and Finding the Will

An executor, called a personal representative in many states, is the person a will names to settle the estate: gather what your parent owned, pay the bills and taxes from it, and hand out what's left the way the will says. Your parent picks that person, ideally with a backup, and the court makes it official after death. The choice only works if the executor can find the original signed will, because courts generally start with the original and a copy takes extra proof. So the two jobs go together: pick the right person, then make sure that person knows exactly where the will is.

Most families get the first half done. The second half stalls in a drawer nobody remembers. For the wider paperwork picture, see our list of important documents for aging parents.

What an executor actually does

Being named in a will doesn't hand anyone authority. After your parent dies, someone asks the probate court for the appointment. In California, for example, the Riverside Superior Court explains that a person must petition the court to be appointed as personal representative, and if the court finds a valid will, it issues "letters testamentary." Maryland's courts describe their version, letters of administration, as the documents that give the representative authority to handle the estate, and they're what banks will ask to see.

Once appointed, the job is real work with someone else's money. The Maryland courts' tip sheet for personal representatives calls the representative a fiduciary, "in charge, but the assets do not belong to you." In Maryland that means no using the person's credit cards, no estate checks to yourself, no estate money in your own account, and no driving their car or letting anyone else drive it.

California's mandatory court form DE-147, Duties and Liabilities of Personal Representative, shows the workload. Among other things, a California representative must:

• Find and take possession of the property that goes through the estate.
• Keep estate money in an account named as an estate account, never mixed with their own.
• File an inventory and appraisal within four months after letters are first issued.
• Mail a notice of administration to known creditors within four months of appointment.
• Keep estate property insured and keep records of every transaction for the court's review.

The form itself says an attorney is best qualified to advise on these duties. Other states set their own lists and deadlines.

Many families don't realize that a lot of property never touches the executor. Maryland's tip sheet notes that property naming a beneficiary, payable-on-death accounts and deeds, and property owned jointly with right of survivorship pass outside probate, and the personal representative has no control over them. A parent whose accounts and house all have beneficiaries or joint owners may leave the executor little to do.

How a parent might choose an executor

It's your parent's decision. These are the questions worth raising.

What makes someone a good fit

• Organized. Deadlines, forms and record keeping are most of the job.
• Trusted by the family. Not necessarily the oldest; the one siblings will accept.
• Willing. Ask them first.
• Likely to be around. A friend your parent's age may not be.
• Close enough, or able to manage from afar. Someone has to deal with the house, mail and court.

Co-executors

Parents often want to name two or three children together so nobody feels passed over. Nolo cautions that naming more than one executor just to avoid hurt feelings can cause more harm than good. When co-executors are named, Nolo says, they must act in unison: apply for probate together, make decisions unanimously, and all sign deeds, titles, account paperwork and tax returns. That's a lot of signatures from people in three time zones. State law and the will's wording can change how this works, so ask the drafting attorney.

Alternates

Nolo's gentler fix: name one child as executor and the others as alternates, who take over if the first choice dies first or can't or won't serve. Every child hears they're trusted, and nobody has to co-sign everything. A will with no backup can leave the choice to the court and the state's priority list. Texas, for example, lists who the court appoints in order: the person named as executor in the will comes first, with the surviving spouse, the people who inherit under the will, next of kin and even creditors further down.

Living in another state

This is where state rules really differ. Two examples:

• Florida says a person not domiciled in the state cannot qualify as personal representative unless they're in a listed group: an adopted child or adoptive parent, someone related by lineal consanguinity (a direct ancestor or descendant, such as a child, grandchild or parent), a spouse, a brother, sister, uncle, aunt, nephew or niece or someone related by lineal consanguinity to one of them, or the spouse of anyone who qualifies. A trusted friend in Ohio wouldn't qualify.
• Texas disqualifies a nonresident executor who hasn't appointed a resident agent to accept legal papers for the estate and filed that appointment with the court.

Other states set their own conditions. If your parent's choice lives out of state, ask the lawyer: "Can she serve here, and what would she need to do?"

A rough comparison of the common setups:

Talking with your parent about it

"Who gets the house?" rarely lands well. Logistics questions go over better:

• "If something happened, who did you name to handle things? I just want to know who to call."
• "Does the person you picked know they're it?"
• "Who has the original, you or the lawyer?"

If your parent picked a sibling over you, try to hear it as a logistics decision; it often is. If the will is old, gently check that the named executor is still alive, still in touch and still willing. For openers, see talking to aging parents about finances; if siblings are already dividing roles, see sharing caregiving with siblings.

Why the original will matters

People assume a clear photocopy or scan will do. Often it won't, or not easily. In California, whoever has custody of a will must, within 30 days of learning of the death, deliver the will to the clerk of the superior court in the county where the estate may be administered and send a copy to the named executor (or a beneficiary, if the executor can't be located), unless a probate petition was already filed. The Riverside court's self-help page says the same: the will must be filed with the court within 30 days after the death.

When only a copy turns up, the process gets harder. The Travis County, Texas, Probate Court's guide for attorneys, Check 10 key points in the Will, lays out what changes. An application to probate a copy must state why the original can't be produced, that reasonable diligence was used to find it, and that the testator didn't revoke it. The order must find that the applicant overcame the presumption that the original was revoked. The guide also warns that clients often swear they have the original, then find the real one elsewhere.

That presumption is the part families don't expect: in Texas, a missing original starts out presumed revoked, and the person offering the copy has to prove otherwise. A New Jersey probate lawyer writing in the National Law Review describes the same general presumption and calls rebutting it, when someone objects, very difficult. Standards differ by state, so this is a question for a probate lawyer. A copy can sometimes still be probated, but it means more proof, more time and more room for a relative to object.

Three practical takeaways:

• Know which one is the original. Signatures you can feel through the paper and a raised notary seal are clues, per the Travis County guide, but it also says it's not always easy to tell. Ask the attorney or check the receipt.
• Leave it in one piece. If you need a copy, copy it as it is rather than unstapling it.
• Keep codicils with it. A later signed amendment needs the same care.

Where to keep the original will

Our guide to where to keep important documents covers safes, bank boxes and court deposits in detail. The short version:

• The drafting attorney's vault. Common and sensible, as long as you have the firm's name and a written receipt.
• A home fire-resistant safe. Easy for family to reach, if someone else can open it.
• A bank safe deposit box. Secure, but access after death depends on state law, according to FDIC Counsel Richard Schwartz. The FDIC suggests asking an attorney where to keep the original will.
• On deposit with a court or county clerk, in states that allow it.

Texas shows how a court deposit works. Under the Texas Estates Code, chapter 252, a person can deposit their will with the county clerk where they live. It goes in a sealed wrapper listing the people to notify after death, and the clerk issues a numbered certificate of deposit. While your parent is alive, only they or someone they authorize by sworn written order can take it out. After the death, the clerk notifies the people on the wrapper and delivers the will on request. The deposit has no legal effect on probate; it's just a safe, findable place for the paper. North Carolina, Ohio and Iowa have their own versions, covered in the storage guide.

Whatever your parent chooses, file the certificate, receipt or attorney letter at home.

Letting the executor know where it is

The National Institute on Aging's checklist advises telling someone you know and trust, or a lawyer, where to find your important papers, and notes you don't need to discuss your personal affairs to do it. Your parent can share where without sharing what.

A one-page "where the will is" note covers most of it:

• Executor's name and phone, plus each alternate
• Date the will was signed, and dates of any codicils
• Where the original is: attorney, home safe, court deposit or bank box
• Attorney's name, firm, phone and address
• Receipt, attorney letter or court certificate of deposit, and where it's filed
• Where copies are, and that they're marked "copy"
• Whether there's a trust, and who the successor trustee is
• How to open the safe or reach the box, without writing the combination itself
• Where the letter of instruction and burial wishes are

Give the executor a copy, keep one with your parent's papers and update it when anything moves. After a new will or a new attorney, an old note can send everyone to the wrong place.

What the executor will need

Certified death certificates and a list of accounts. Banks, insurers and agencies usually want certified copies, and the executor needs to know whom to contact. Our checklist for a deceased parent's accounts covers both, including finding the accounts nobody listed.

A letter of instruction. This is an informal letter to the executor and family. Fidelity describes it as not legally binding but useful for what a will doesn't cover: funeral wishes, where documents are, and contacts for the tax preparer, attorney, insurance agent, banker and beneficiaries. It also warns against using the letter to change the will, since informal changes aren't binding and can invite disputes.

Burial wishes, somewhere other than the bank box, since the funeral may come before anyone can open it. See the funeral preplanning checklist, and for phones, email and photos, digital estate planning for parents.

A clear sense of what's not theirs to pay. The Consumer Financial Protection Bureau explains that debts are generally paid from the estate, according to state law, and that collectors may contact an executor about the debts but aren't allowed to say or hint that the executor must pay with their own money. Who to call, and in what order, is in our guide to who to notify when a parent dies.

Mistakes that cause the most trouble

• An executor who doesn't know they're the executor, or knows but can't find the will.
• "The lawyer has it," and no one knows which lawyer. Especially when the will is twenty years old.
• Two documents that both look like the original. Mark copies clearly.
• No alternate, and the named executor has died or moved overseas.
• An out-of-state executor in a strict state, discovered after the death.
• A current will next to stale beneficiary forms. Those accounts pass outside the estate, so review both together.

Frequently asked questions

Can I be the executor of my parent's will if I live in another state?

Often, yes, depending on the state. Florida limits nonresident personal representatives to certain relatives and their spouses; Texas requires a nonresident to appoint a resident agent. Ask a probate lawyer in your parent's state.

Does the executor have to be a family member?

Not necessarily. Many people name a friend, a professional or a trust company, though some state rules, like Florida's for nonresidents, favor relatives.

Is a copy of a will valid?

A copy can sometimes be probated, but it's harder. In Texas, for example, the person offering a copy must show why the original can't be produced, that they searched for it, and that it wasn't revoked. Texas presumes a missing original was revoked until that's disproved, and other states have their own rules, so ask a probate lawyer.

Does being named executor give you authority right away?

No. The named executor has to ask the probate court to be appointed. Once the court admits the will, it issues letters testamentary (the name varies by state), and that paper is what lets the executor act for the estate.

What happens if my parent's executor can't serve?

If the will names an alternate, that person steps in. If not, the court picks someone from the state's priority list. In Texas, the surviving spouse and the people who inherit under the will come before other next of kin.

Leaving the executor a map

Most of this is one conversation and one sheet of paper: who the executor is, who the backup is, and where the original will lives. You can put it together with this article, a call to the attorney's office and an hour at the kitchen table.

If you'd rather not build the pages yourself, Emergency Binder Now turns about 25 minutes of guided questions into a printable binder for your parent. Its legal pages record whether a will, trust and powers of attorney exist and where each original is, and the gap list shows what's missing. You can see a sample binder first.

This article is general information, not legal advice. Probate rules, executor qualifications and will deposit options vary by state and change over time. Talk with a probate or estate lawyer in your parent's state about their situation.