Who Should You Choose as Executor of Your Will? A Utah Estate Planning Guide
Key Takeaways
- If you die without a valid estate plan, Utah law provides a default plan for distributing certain assets.
- Your spouse does not always automatically inherit everything. If you have descendants from another relationship, your spouse generally receives the first $75,000 plus one-half of the remaining intestate estate.
- Dying without a will does not always mean every asset will go through probate, but probate assets may be distributed according to Utah’s intestate succession laws.
- Without an estate plan, you also give up the opportunity to choose who handles your estate and express your preferences for the care and financial management of your minor children.
- The state does not automatically receive your property. Utah law works through a hierarchy of potential heirs before property could eventually pass to the state.
For a lot of my clients, choosing an executor starts with a surprisingly uncomfortable question: “Which one of my kids should I put in charge?” Maybe your oldest child seems like the obvious choice. Maybe one of your children is much better with money or paperwork than the others. Maybe you are tempted to name all of them because you don’t want anyone to feel left out.
Those are all reasonable things to think about, but I usually encourage clients to look at the decision a little differently. Choosing an executor isn’t a birthright or a reward. You’re choosing someone to do a job. The person you name may eventually be responsible for locating your assets, dealing with banks and other financial institutions, paying expenses and debts, communicating and resolving conflicts with family members, working with attorneys and accountants, and ultimately making sure your estate is distributed according to your wishes.
The right question isn’t necessarily, “Who am I supposed to choose?” It is, “Who is actually capable of handling this responsibility?”
What Does an Executor Do in Utah?
Let’s start by defining this job. Most people use the word executor to describe the person named in a will to handle an estate after someone dies. In Utah, the legal term you will generally see is personal representative. For simplicity, I will use “executor” in this article because that is the term most people recognize.
An executor’s job can vary considerably depending on the size of the estate. Administering a relatively simple estate may be fairly straightforward and informal, while other estates may involve multiple court appearances, businesses, complicated family relationships, creditors, tax returns to be prepared and filed, property that needs to be sold or transferred, or beneficiaries who disagree about what should happen. Generally, an executor will locate and protect estate assets, identify and communicate with heirs and beneficiaries, work with financial institutions, identify and pay legitimate debts and expenses, address tax issues, maintain or sell property when necessary, and distribute the estate according to the will and Utah law.
Your executor does not need to be an attorney, accountant or financial expert. They do, however, need to be someone who can take responsibility, make decisions, follow through, and ask for professional help when they need it.
Executor, Trustee and Power of Attorney: Who Does What?
One of the most common sources of confusion I see in estate planning is the different people we name to act for us. Clients sometimes use the terms executor, trustee and power of attorney almost interchangeably. They are not interchangeable. They are different jobs, they apply at different times, and they may involve different property.
Your agent under a power of attorney acts for you only while you are alive. Depending on the authority you give that person, the agent may be able to manage financial accounts, sign documents, deal with property, pay bills or handle other financial matters on your behalf. A durable power of attorney can continue to be effective if you become incapacitated, but the authority ends when you die. In Utah, the statute specifically provides that a power of attorney terminates upon the principal’s death.
That last point surprises people. I sometimes hear a client say, “My daughter has my power of attorney, so she’ll take care of everything when I die.” But that isn’t what a power of attorney does. Once you die, your agent generally no longer has authority to act under that document. At that point, responsibility for your probate estate shifts to your executor or personal representative.
Your executor, or personal representative, deals with your probate estate after your death. If probate is necessary, that person may work with the court, identify and collect estate property, address creditors and expenses, deal with taxes, sell property when appropriate, and ultimately distribute the probate estate according to your will and Utah law.
Your trustee has a different responsibility. A trustee manages the property owned by a trust according to the terms of that trust. With a typical revocable living trust, you may serve as your own trustee while you are alive and able to manage your affairs. A successor trustee can then step in when required by the trust, often because of incapacity or death, and continue managing the trust property. After the death of the person who created a revocable trust, Utah law allows the trustee to proceed with administration and distribution of the trust property according to the trust’s terms.
The same person can serve in more than one of these roles, and that is fairly common. You might name the same daughter as your agent under a power of attorney, successor trustee and executor. But even if the name is the same on all three documents, she is wearing a different hat depending on what she is doing and when she is doing it.
That distinction matters when you are deciding whom to name. Someone who would be excellent at helping you pay bills and manage finances during your lifetime may not necessarily be the person you want dealing with all of your children after your death. Likewise, someone who can efficiently handle a relatively short probate administration may not be the best person to manage a trust for grandchildren over the next fifteen years.
This is why I don’t think these decisions should be treated as simply filling names into blanks on estate-planning documents. You are choosing people for different jobs. Understanding the job makes it much easier to choose the right person.
What Makes Someone a Good Executor?
There is no single “perfect” executor. The right person depends on your family, your assets and the people available to you, but there are several things I encourage clients to consider.
Choose Someone You Trust
Trust obviously matters. Your executor may have access to your financial information, property and accounts, and more importantly, that person will be responsible for carrying out your wishes after you are no longer here to explain what you intended.
But trust alone isn’t enough. The child you trust with absolutely anything may not be the child you would trust to organize six months of paperwork, return phone calls, meet deadlines and deal patiently with a title company. That’s okay. This is a job, not an honor, and different people have different strengths.
Choose Someone Who Is Organized and Responsible
Your executor doesn’t have to know how probate works before you die. That’s what attorneys, accountants and other professionals are there to help with. It does help enormously, however, if the person you choose is reasonably organized, responds to things that need attention, and can follow a process through to completion.
The person who is wonderful to have at Thanksgiving dinner may not necessarily be the person best equipped to keep track of documents, deadlines, bills and financial decisions. That doesn’t make one child better than another. It simply means that the qualities that make someone a wonderful son, daughter, sibling or friend are not always the same qualities that make someone a good executor.
Choose Someone Who Is Willing to Serve
Being an executor can take time, and remember when your executor will be doing this: after you have died. They may be grieving while also dealing with banks, property, paperwork, family members and decisions that cannot simply be ignored.
I generally recommend talking with the person you are considering before naming them. You don’t have to disclose every detail of your finances or walk them through your entire estate plan, but I think it is helpful to say, in substance, “I am considering naming you to handle my estate when I die. Are you comfortable taking that responsibility?” Surprising someone with the job after your funeral isn’t ideal.
Not Sure What Utah's Default Plan Would Mean for Your Family?
Your spouse, children, family relationships, and the way your assets are owned can all affect what happens if you die without an estate plan.
Should You Name Your Oldest Child as Executor?
Maybe, but there is no rule that says the oldest child should be in charge. I sometimes see parents approach this decision almost as though birth order determines responsibility: “She’s the oldest, so I suppose she should be the executor.”
My question is usually: Why? If she is responsible, organized, willing to serve and reasonably capable of navigating the family, she may be an excellent choice. But if the second or third child is much better suited for the job, there is nothing wrong with choosing that child instead.
Naming one child as executor doesn’t mean you love that child more, and it doesn’t even necessarily mean you trust that child more. It means you believe that person is the best fit for a particular responsibility. Those are very different things.
Think About Your Family Dynamics
If one child has a difficult relationship with every other child in the family, putting that person in charge may create problems even if he or she is perfectly capable of balancing a checkbook. Likewise, if one child struggles to make decisions whenever there is disagreement, that may matter too.
A good executor doesn’t need to make everybody happy. Sometimes that simply isn’t possible. But the person should be capable of following your estate plan, communicating reasonably with the family, and making necessary decisions even when another family member doesn’t like the answer.
Should You Name All of Your Children as Co-Executors?
Parents sometimes tell me, “I’ll just name all three kids so no one feels left out.” I understand the instinct, but I don’t usually think avoiding hurt feelings is, by itself, a good reason to create co-executors.
Under Utah law, when two or more people are appointed as co-personal representatives, the concurrence of a majority is generally required for acts involving administration of the estate unless the will provides otherwise. In practical terms, multiple people in charge can mean more people coordinating signatures, decisions, schedules and communication.
Sometimes having co-executors makes sense, but more decision-makers do not automatically make an estate easier to administer. In many situations, I would rather see a client choose the person who is best suited for the job as the primary executor and then name one or more good alternates.
Fair does not always have to mean identical. Giving three children equal inheritances is one question. Giving all three children the same administrative job is a different question.
Should You Name a Backup Executor?
Yes. People sometimes spend considerable time choosing their first executor and almost no time choosing the backup, but estate plans are supposed to last.
The person who is the obvious choice at age 55 may not be able to serve when you are 85. Relationships change. People move. Health changes. A child may develop family or professional responsibilities that make serving much harder.
I encourage clients to think beyond who makes sense today and ask who is likely to be capable of doing the job when the job actually needs to be done. That is also one reason estate plans should be reviewed periodically rather than signed once and forgotten.
What If No Family Member Is a Good Choice?
Then don’t choose a family member simply because you think you are supposed to. A trusted friend may be a much better executor than a relative who is unreliable, overwhelmed, unwilling to serve or likely to create family conflict.
Depending on the circumstances and size of the estate, a professional or corporate fiduciary may also be worth considering. There can be costs associated with a professional fiduciary, so it isn’t the right solution for everyone. But in the right situation, particularly where there is significant wealth, complexity or family conflict, paying a qualified independent person to administer the estate can be money well spent.
The question remains the same: Who is best equipped to do the job?
Can Someone Who Lives Outside Utah Be Your Executor?
Living nearby can certainly make some aspects of estate administration more convenient, but geography should not necessarily control your decision. Today, many financial, legal and administrative tasks can be handled remotely, and an organized, responsible child who lives in another state may be a much better executor than an unreliable child who lives five minutes away.
I would treat location as one factor among many, rather than automatically making it the deciding factor.
How Can You Make Your Executor’s Job Easier?
Choosing the right executor is only half of the equation. The other half is making sure you don’t leave that person with an unnecessary mess. Your executor should not have to become a detective just to figure out what you owned.
At a minimum, someone should be able to determine where your original estate-planning documents are located, what financial accounts and major assets you own, where important insurance information can be found, who your attorney, accountant and financial advisor are, whether you own interests in businesses or real estate, and where other important records can be located.
You don’t necessarily need to give your children your passwords or hand them a spreadsheet showing every dollar you own, but there should be a road map. I have seen the difference between an estate where the family knows what exists and where to find it, and an estate where everyone is searching through desks, filing cabinets, old emails and bank statements trying to piece together someone’s financial life.
A little organization while you are alive can save your family a great deal of frustration later. That’s part of estate planning too. A good estate plan shouldn’t just say where your property goes; it should make things easier for the people you leave behind.
Does an Executor Get Paid in Utah?
An executor can be paid. Utah law provides that a personal representative is entitled to reasonable compensation for services provided to the estate, although that doesn’t mean a family member has to take a fee.
Whether compensation makes sense may depend on the amount of work involved, the complexity of the estate and the family circumstances. In a simple estate, a child may decide that he or she doesn’t want compensation. In a complicated estate requiring substantial time and effort over many months, compensation may be entirely reasonable.
This is another issue worth thinking about before the estate has to be administered rather than leaving everyone to figure it out afterward.
What Happens If You Don’t Name an Executor in Your Will?
If you don’t nominate an executor, or the people you nominated are unable or unwilling to serve, the court may need to appoint someone else. Utah law establishes an order of priority for appointment of a personal representative, and the person nominated in a valid will receives priority over several other categories of potential appointees.
That is one of the benefits of making the decision yourself. You can’t control everything that will happen after your death, but you can identify the people you trust to carry out your plan and give your family a much clearer path to follow.
Can You Change Your Executor Later?
Absolutely. Naming someone as executor is not a lifetime commitment to that person. If relationships change, your chosen executor develops health problems, moves away, dies, becomes unable or unwilling to serve, or you simply decide someone else would be a better fit, your estate plan can be updated.
In fact, that is a good reason to review your estate plan every few years and after significant changes in your family, finances or relationships.
So, Who Should You Choose?
I wouldn’t automatically choose your oldest child, the child who lives closest, or all of your children together simply because it feels more fair. I also wouldn’t worry about finding someone who already understands probate.
Instead, look for someone you trust who is organized, responsible, willing to serve, capable of dealing with your family, and comfortable asking for professional help when they need it. Then name a good backup and do what you can now to make their eventual job easier.
Choosing an executor is only one part of creating an estate plan, but it is an important one. The documents matter, and the people you choose to carry them out matter too. Understanding the difference between your executor, trustee and agent under a power of attorney also makes it much easier to choose the right person for each responsibility.
If you aren’t sure who should serve in those roles, those are exactly the kinds of decisions we help Utah families work through. The goal isn’t simply to get documents signed. It is to create a plan that will actually work for your family when they need it.
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