An executor, also commonly referred to as “personal representative”, is a fiduciary. A fiduciary is a position of trust and honesty and is held to the highest standard of care possible under the law. They are the individual who is “in charge” of administering your estate through the probate process. A personal representative is empowered to marshal the decedent’s assets, pay their debts and funeral expenses, sell their property, and perform a variety of other actions. These actions are all done with the final goal in mind of closing out the estate pursuant to the terms of the individual’s Will or the laws of intestacy. Once selected, the Register of Wills in the relevant county issues the personal representative “Letters of Administration” which grants them the necessary legal authority to act on behalf of the estate.
Given the level of responsibility the personal representative has, who serves in this role can have a large impact on the administration of one’s estate. The question then is: who makes this selection?
One of the many positive aspects of having a Will is that it allows you to select your own personal representative. Perhaps you have a friend who is financially savvy and would be well placed to take on this responsibility. Perhaps you want your surviving spouse to fill this role. However, having a Will gives you the right to make this selection on your own. You can even select an alternate personal representative in the event that your primary choice is unable or unwilling to fulfill this role. This way you can better ensure that the people you trust are carrying out your wishes after your death.
If you don’t have a Will, who makes this selection on your behalf? The answer is not entirely straightforward. Maryland law has a statutory ranking of individuals with varying levels of priority as to who can serve in this important role. If there is no Will, the class of individuals with the highest priority to serve is your surviving spouse and children. While this arrangement may not seem all that troublesome, not selecting a particular person to serve in this role can result in avoidable hardships.
For example, assume that an individual dies survived by a spouse and three children. If everyone in the class cannot agree as to who is to be the personal representative, a judicial hearing in the Orphans’ Court must be held. At the hearing, the spouse and surviving children can present their arguments as to why a particular individual should, or should not, serve. After arguments, a judge makes the selection. This can have serious repercussions for one’s estate. In certain counties, it can take several months to get a hearing date. Given the fact that no action can be taken regarding one’s estate without a personal representative, this means that one’s estate is in limbo until this issue is resolved. Without someone having the necessary Letters of Administration, it means that no one can access the decedent’s bank or investment accounts. Obviously, this can have a significant impact on the management of the surviving family member’s finances. Having a Will which appoints an executor can avoid this scenario. Upon presentation of the Will and other probate documents, the Register of Wills can issue Letters of Administration promptly to the personal representative named in the Will. There is no need to have to wait for a judge to determine who shall serve as your executor, as you have already done so in your Will.
Another potential problem in failing to select your own personal representative is that it can lead to expensive litigation. This is can be particularly true when the decedent remarried during their life. Often, the decedent is survived by both their new spouse as well as their children from their prior marriage. The personal dynamics between the decedent’s children and their step-parent may not be that harmonious. There may be a lack of trust between the parties. No matter what ones’ family dynamics are, not selecting an executor in your Will invites the prospect of a fight in court over who shall administer your estate. This can be an expensive undertaking and cost both the estate as well as the surviving family members a good deal of money.
Having a Will gives you the right to select the person you trust to serve in the role of executor of your estate. It helps avoid costly litigation over who is to serve in this role and better ensures that your estate can be promptly administered according to your wishes.