Can There Be More Than One Executor of a Will?
When someone creates an estate plan, they can designate the individual they wish to serve as their estate’s personal representative. This individual can then petition the probate court to be appointed as the personal representative officially once 120 hours have lapsed since the death of the testator.
In some cases, multiple individuals may be designated. Or, in situations where there is no clear appropriate person to serve as a personal representative, multiple people may wish to come forward and fulfill the duties jointly.
Whether you are forming an estate plan or handling a loved one’s estate, you might wonder whether there can be more than one designated personal representative. The New Mexico probate lawyers from New Mexico Financial & Family Law are here to answer your questions. Let’s start with the basics.
What Does Executor of Estate Mean?
Upon drafting a will, the testator will name an executor, legally referred to as a personal representative in New Mexico. After their death, the designated representative’s job is to protect and manage the property held in the estate. They are the person who carries out the last wishes of the testator and handles all related legal matters.
Common duties of an executor include the following:
- Collecting, inventorying, and assessing the assets of the estate
- Helping set up funeral arrangements
- Managing the assets during the probate process
- Ensuring all debts and taxes are paid
- Distributing remaining assets to heroes or beneficiaries
- Closing the estate when appropriate
Being selected as an executor is often an honor; however, the role usually takes up considerable time and money. Personal representatives handle disputes among heirs, beneficiaries, and other co-executors.
There is also the possibility of personal liability exposure. As a personal representative, that person is responsible for paying taxes and debts before disbursing inheritances. If they are found to have failed to pay the appropriate taxes, they could be personally liable for any remaining debt.
Further, and more importantly, personal representatives have a fiduciary duty to act in the best interests of the estate as a whole. This duty includes doing everything possible to honor the wishes of the testator and distribute property as intended to the heir, to the extent possible. Because heirs have a financial interest in the handling of the estate, they can petition the executor or the probate court itself to force certain decisions to be made. In other words, the executor has a duty and a personal motivation to look out for the interests of heirs.
It is not uncommon for an executor to also be a beneficiary. However, that can lead to conflicts of interest. If you are forming an estate plan, it is important to ensure you follow state laws when choosing your personal representative while considering who is best equipped to handle your assets and debts when you die.
Who Can Be Named as Personal Representatives in New Mexico?
Naming one or multiple personal representatives is a significant decision. To ensure the estate’s assets are protected and surviving loved ones receive the assets they are entitled to, those who are drafting a will need to understand who can be their personal representative in New Mexico.
In New Mexico, an executor must meet the minimum requirements of being at least 18 years old and of sound mind, which refers to not being judged incapacitated by the court.
Note that if you do not choose an executor, the probate court will assign one according to an order of priority (NM Stat § 45-3-203 (2016)).
New Mexico also has special rules for executors that those engaging in estate planning should be aware of. In addition to the age and capacity restrictions, the probate court has the right to reject a potential executor if they are found to be “unsuitable in formal proceedings.” While it is unlikely this could happen, if it does, the interested parties will be required to attend a hearing and evaluate the executor to determine who is best suited to serve as executor.
While some states impose restrictions on naming executors who live out of state, New Mexico is not one of them. New Mexico also allows individuals with felony convictions to act as executors. However, creditors cannot be named as a personal representatives until at least 45 days after the decedent’s death.
Should I Have More Than One Personal Representative?
Depending on your domestic situation, if you are forming an estate plan (or revising one) you may consider having more than one personal representative. While there are benefits to having multiple executors, it’s equally as important to understand the potential downsides.
If you are uncertain whether you should designate more than one personal representative, know that you also have the option to appoint an alternate executor. The alternate representative takes over executor duties if the first choice dies, cannot fulfill their obligations as executor, or wishes not to participate in the probate process.
Advantages of Multiple Executors
The executor of an estate has a lot of responsibilities. Depending on the size of the estate, appointing two personal representatives can make the process easier and lighten the load on both parties.
It’s also advantageous to choose two executors with different skill sets. Each individual can take on the tasks they are best suited for, ensuring everything is completed correctly and in a timely manner. For example, one individual can handle real estate transactions while the other manages personal effects.
A final reason to appoint multiple executors is to ensure the estate is distributed fairly. Co-executors may give peace of mind before the decedent’s passing and ensure the probate process goes as smoothly as possible for the surviving family members.
Disadvantages of Multiple Executors
There are also possible negative consequences associated with assigning multiple personal representatives. Personal representatives must act unanimously, so problems can arise if there is a disagreement the two executors cannot resolve. As a result, the matter would need to be settled in court, drawing out the probate process and increasing the cost for the surviving family members.
Additionally, co-executors are legally responsible for each other’s actions. If one executor removes money from the estate without permission, the other executor may be held at-fault. Note, however, that a co-executor has the option to sue the person who took the funds — although there is no guarantee the funds will or can be recovered.
If complications arise between multiple co-executors, either executor can renounce their right to be a co-executor and forfeit all decision-making and participation abilities. This is done by signing a renunciation form when applying for probate.
Contact a New Mexico Probate Lawyer
Understanding key decisions in estate planning is vital. Regardless of your familial or financial situation, it is essential to legally make your wishes clear after death. You should also understand every option available, such as whether to appoint joint personal representatives and the advantages and disadvantages.
If you are a family member undergoing the probate process after a recent loved one’s passing, it’s also important to understand the probate process and the legal expectations of the personal representative. Having multiple personal representatives serve your loved one’s estate is legally possible, but there are important factors to consider, such as those described above.
In either scenario, a New Mexico probate lawyer from New Mexico Financial & Family is here to help. We can evaluate your situation and help you determine the best path forward to serve the interests of heirs and the estate as a whole. Schedule a no-obligation consultation today to learn more.