Who can Serve as the Executor to My Estate?

Picking an executor to your estate is an important part of your estate planning process and should be done with a lot of thought and consideration about who is best to carry out your final wishes and ensure posthumous dispersal of your assets. Sometimes referred to as the “personal representative,” the executor is tasked with protecting your estate by settling debts, paying taxes, and ensuring assets are properly transferred to beneficiaries.

Executors have tremendous power over an estate and must make an assessment of all the deceased’s assets and debts and may even be able to sell of or liquidate property to help settle those debts. For those reasons and others, courts do set a standard all executors must meet and even leave open the possibility of the individual being excluded from serving as the personal representative altogether.

Wisconsin law only has two written requirements for persons to serve as executors of an estate, which are that the individual must be at least 18 years of age and be of sound mind. While some states exclude persons convicted of a felony from serving as the personal representative of an estate, Wisconsin places no such restrictions on the person assuming that role.

Situations that would exclude someone from being deemed of sound mind would include court judgements declaring the person to be incapacitated. Probate courts overseeing the will may also reject someone from serving as an executor if good cause can be shown that he or she has a conflict of interest or the capacity to carry out the deceased’s last will and testament.

A conflict of interest can be any situation where the executor would stand to gain from improperly administering the estate. This does not necessarily mean an heir cannot serve as the executor to the estate, but that he or she must not unjustly enrich himself or herself through business dealings overseeing the probate process.

Furthermore, while Wisconsin estate planning law does not prohibit a person living out of state from being the executor, he or she must generally name someone as a resident agent to receive paperwork related to the probate process. However, it is ultimately up to the probate court whether to accept or reject someone from becoming the executor to the estate.

For these reasons and so many others, it is generally best practice to appoint someone close and trustworthy who also lives in state to serve as your executor. It typically takes week and months to pass estates through the probate process and requires someone dedicated and honest to ensure that your last wishes are carried out and your loved ones and friends receive the assets you deem them worthy to receive after your passing.

The estate lawyers of Krause Donovan Estate Law Partners, LLC practice law in the areas of Probate, Wills, Estate Planning, and Trusts. We assist clients in and around Madison, Wisconsin with all matters related to estate planning, trusts, and probate matters. Request a consultation with one of our experienced attorneys to discuss your estate planning needs.