When writing a will, one of the most important decisions you’ll make is who will serve as executor. This person will be responsible for inventorying and protecting your assets, paying your debts and creditors, and distributing your assets to your heirs. It can quickly become a complex job depending on the size and holdings of your estate. That’s why choosing the best person for the job is crucial. But can the executor of your will also be a beneficiary? Let’s find out.
What is an Executor of a Will?
An executor is someone named in a will to carry out the wishes of the deceased. In North Carolina, the executor has several responsibilities, including:
- Inventorying the estate and making a report to the court
- Protecting the assets of the estate
- Paying debts and creditors of the estate
- Making reports to the probate court as needed
- Filing income and trust taxes
- Fulfilling any other duties that the court demands
- Distributing assets to heirs (your beneficiaries) according to the terms of the will
As you can see, the executor must accomplish quite a bit of work on your estate’s behalf. If you have complex asset holdings in other states or countries, if your heirs contest your will, or you also own businesses or separate trusts, the executor has even more on their plate.
Can the Executor Be a Beneficiary of the Will?
In North Carolina, the executor can be a beneficiary of the will if they are not also responsible for probating the will. The probate court receives the will from a deceased person’s loved ones and then validates the will (probates the will).
“A will has no legal effect until it is probated by a court (usually the clerk of superior court)… Probating the will refers to the process by which a court determines that a “purported” will is actually the final will and testament of the decedent and is legally valid to pass title to property.” (1)
If the executor is a beneficiary of the will, they are not allowed to serve as a probate witness for the will. The main reason for this is to avoid any potential conflicts of interest. However, if no other beneficiaries are willing or able to serve, the court may allow the executor to be a witness to the will’s authenticity.
Executor Qualifications in North Carolina
To serve as an executor, an individual must meet specific qualifications. An executor for a will must be:
- At least 18 years old
- Of sound mind (not declared incompetent or incapacitated)
- Suitable for the executor position
- A trust institution licensed by the North Carolina Commissioner of Banks
- A corporation based outside of North Carolina authorized to transact business in the state. To do so, they must appoint an agent in NC to receive your estate’s legal papers.
An executor may NOT be:
- Under any legal disability that prevents them from accomplishing the executor tasks
- Your former spouse
- Someone who declines to serve
- Someone who does not meet qualifications to serve within 30 days of appointment. Qualifications may include posting a bond. Some individuals with bad credit will not be capable of meeting this requirement.
- Convicted of a felony in NC or any other state or under Federal laws (unless they completed any criminal sentences and any parole, or if they received an unconditional pardon)
How Do You Choose the Best Executor for Your Estate?
Now that you know the answer to whether an executor of a will can also be a beneficiary in North Carolina, it’s time to learn how to choose the best one. First, decide if you want your executor to be an individual or an institution like a bank.
If you choose an individual, make sure they are capable of serving. Look for someone with good communication skills who can work with the court and handle their duties. They should also be someone you can trust to carry out your wishes and manage your estate’s assets responsibly.
If you choose a bank or other institution, make sure they are qualified to serve as an executor in North Carolina and that you are comfortable with the fees they charge, which can be significant.
You can also choose to have more than one executor, which can be helpful if the estate is complex or if you want someone to serve as a backup in case the primary executor can’t serve.
Finally, make sure to communicate your wishes to your executor and update your will if anything changes.
We Can Help
At Cape Fear Law, we can help you write a will and choose the best executor to handle your estate. We can also help with other estate planning needs like trusts and Powers of Attorney. Give us a call today to schedule a consultation and see for yourself how we can help you plan for the future.