How to Choose the Right Executor for Your Will

Drafting a will is a profound act of care for the people you will one day leave behind. It is your final set of instructions, a roadmap designed to distribute your assets and fulfill your wishes. Yet, a map is only as good as the person reading it. The single most important decision you will make in this process, beyond who gets what, is selecting the person or institution that will carry out these instructions. In Maryland, this individual is formally known as the Personal Representative, though many still use the traditional term, Executor.

Choosing this fiduciary is a task that requires careful thought and a candid assessment of the people in your life. The role is demanding, carrying significant legal and financial responsibilities that can last for months or even years. 

What is a Personal Representative in Maryland?

In Maryland, the term “Personal Representative” is the legal designation for the individual or entity appointed to administer a deceased person’s estate. While the term “Executor” is commonly used when a will names a specific person for the role, “Personal Representative” is the official title used in all Maryland probate proceedings.

This person acts as a fiduciary, which means they hold a legal and ethical obligation to act in the best interests of the estate and its beneficiaries. They are accountable to the Maryland Orphans’ Court, which oversees the probate process and ensures that the Personal Representative fulfills their duties according to the law and the terms of the will. Their authority is not automatic; the will only nominates them. They must be formally appointed by the court before they can take any action on behalf of the estate.

What are the Legal Requirements to Serve as a Personal Representative in Maryland?

Maryland law sets forth specific eligibility criteria for anyone wishing to serve as a Personal Representative. Before you name someone in your will, you should be confident that they meet these statutory requirements.

To be appointed as a Personal Representative in Maryland, a person must:

• Be at least 18 years of age.
• Be mentally competent.
• Not have been convicted of a serious crime that would cast doubt on their ability to perform the duties of the office.

There is also a legal order of priority for who has the right to be appointed. The law gives first priority to the person named as the executor in the will. If that person is unable or unwilling to serve, the law provides a list of who has priority next.

Should I Choose a Personal Representative Who Lives Outside of Maryland?

You can name a Personal Representative who does not reside in Maryland. However, doing so adds a layer of administrative complexity. An out-of-state Personal Representative must file a document with the Maryland court appointing a “resident agent.”

A resident agent is a Maryland resident who agrees to accept legal papers on behalf of the estate. This ensures that the court and other parties can serve notices and legal documents related to the estate administration. While appointing an out-of-state individual is permissible, consider the practical challenges:

• Travel: The role may require multiple trips to Maryland to handle tasks like securing property, appearing in court, or meeting with attorneys and other professionals.
• Local Knowledge: An out-of-state person may be unfamiliar with Maryland’s specific probate laws, court procedures, and local real estate markets.
• Logistical Hurdles: Managing the day-to-day tasks of an estate from a distance can be inefficient and time-consuming.

If your preferred candidate lives outside of Maryland, have an open conversation with them about these potential challenges to ensure they are prepared for the commitment.

What are the Primary Duties of a Personal Representative?

The responsibilities of a Personal Representative are extensive and require a high degree of organization, diligence, and integrity. This is not simply an honorary title; it is a demanding job.

Key responsibilities include:

• Locating the Will: Finding the original, signed will and filing it with the Register of Wills in the appropriate Maryland county.
• Opening the Estate: Petitioning the Orphans’ Court to be formally appointed as the Personal Representative and to open the probate estate.
• Identifying and Marshalling Assets: Locating, inventorying, and taking control of all assets owned by the deceased person. This can include everything from bank accounts and real estate to personal property and digital assets.
• Safeguarding Property: Protecting the estate’s assets from waste, loss, or damage. This might involve changing locks on a house, maintaining insurance coverage, and managing investments prudently.
• Notifying Interested Parties: Providing formal notice of the estate administration to all beneficiaries named in the will and any legal heirs.
• Paying Debts and Taxes: Identifying and paying all legitimate debts of the decedent, as well as filing final income tax returns and any required Maryland or federal estate or inheritance taxes.
• Maintaining Accurate Records: Keeping meticulous records of all money that comes into the estate and all expenses that are paid out. This information must be reported to the court in a formal accounting.
• Distributing Assets: After all debts, taxes, and administrative expenses have been paid, the Personal Representative is responsible for distributing the remaining property to the beneficiaries according to the terms of the will.
• Closing the Estate: Filing a final account with the court and taking the necessary steps to formally close the estate once all duties are complete.

What Qualities Make a Good Personal Representative?

Legal eligibility is just the starting point. The ideal Personal Representative possesses a combination of personal traits and practical skills that equip them to handle the complexities of the role. When you evaluate potential candidates, look for someone who is:

• Trustworthy and Honest: This is the most important quality. The person will have complete control over your assets and must act with unwavering integrity.
• Organized and Detail-Oriented: Administering an estate involves a tremendous amount of paperwork, deadlines, and record-keeping. A disorganized person will struggle to meet the court’s requirements.
• A Good Communicator: The Personal Representative must communicate effectively with beneficiaries, creditors, attorneys, and the court. Clear and regular communication can prevent misunderstandings and family disputes.
• Financially Responsible: The candidate does not need to be a financial wizard, but they should have a good head for managing money and paying bills on time.
• Impartial and Fair-Minded: This is especially important when naming one of your children. Can they treat all beneficiaries fairly and avoid being swayed by family dynamics or personal feelings?
• Assertive and Resolute: The role sometimes requires making tough decisions, saying “no” to unreasonable requests from beneficiaries, and dealing with creditors. A person who avoids conflict may not be effective.
• Available and Willing to Serve: The job takes time. Be sure the person you choose has the time and energy to devote to the process and is genuinely willing to take on the responsibility.

Should I Choose a Family Member or a Professional?

Many people default to naming a spouse or an adult child as their Personal Representative. This can be an excellent choice, as a family member is often deeply familiar with your wishes and has a personal stake in seeing them carried out.

However, there are situations where appointing a professional or corporate fiduciary may be a better option. Consider a professional if:

• Your Estate is Complex: If you own a business, have extensive real estate holdings, or have complicated investments, the expertise of a professional can be invaluable.
• You Anticipate Family Conflict: Naming one child over others can sometimes create jealousy or resentment. Appointing a neutral third party can help preserve family harmony by ensuring that no one feels another sibling has an unfair advantage or is being secretive.
• Your Chosen Family Members Lack the Time or Skills: If your children have demanding careers, young families, or live far away, they may not be able to give the role the attention it requires. Likewise, if they lack the organizational or financial skills, they may not be suited for the job.
• You Have No Close Family: If you do not have a spouse, children, or other close relatives you trust, a professional fiduciary, such as a bank’s trust department or a private trust company, is an excellent alternative.

Can I Name More Than One Personal Representative?

Yes, Maryland law permits you to name co-Personal Representatives to serve jointly. Some people do this because they do not want to choose between their children or believe that two heads are better than one. While well-intentioned, this approach can create significant problems.

Potential downsides of naming co-Personal Representatives include:

• Decision-Making Gridlock: If the co-representatives cannot agree on a course of action, the estate administration can stall. Most financial institutions will require both signatures on transactions, making simple tasks difficult if there is disagreement.
• Increased Administrative Burden: Coordinating schedules and getting multiple signatures for every transaction can slow down the entire process.
• Logistical Challenges: If the co-representatives live in different cities or states, the practical difficulties are multiplied.

If you are considering naming co-Personal Representatives, it is wise to include a provision in your will that outlines how disagreements will be resolved. For example, you might state that one of them has the authority to break a tie or that they must submit the dispute to mediation. A more common and often better approach is to name one person and then name one or two alternates in succession.

What Happens if My Chosen Personal Representative Cannot Serve?

Life is unpredictable. The person you name as your Personal Representative today may be unable or unwilling to serve when the time comes due to their own age, health, location, or other personal circumstances.

This is why it is so important to name at least one, and preferably two, successor or alternate Personal Representatives in your will. Your will should clearly state the order of succession. For example: “I nominate my spouse, Jane Doe, as my Personal Representative. If Jane Doe is unable or unwilling to serve, I nominate my son, John Doe. If John Doe is also unable or unwilling to serve, I nominate my niece, Mary Smith.”

Without designated successors, if your primary choice cannot serve, the court will appoint someone based on the legal priority list. This may not be the person you would have wanted, and it can lead to disputes among family members vying for the appointment.

How Do I Formally Name My Personal Representative?

The only way to formally nominate your Personal Representative is to name them in your Last Will and Testament. Simply telling someone you want them to handle your affairs is not legally binding. The will must be drafted, signed, and witnessed according to the specific requirements of Maryland law to be valid.

When you work with an attorney to draft your will, you will discuss your choices for Personal Representative and successors. The attorney will ensure the proper language is included in the document to make your nomination clear and legally effective. This is your chance to make your preference known to the court and to give the person you trust the authority they will need to manage your estate.

Contact Our Experienced Maryland Estate Planning Lawyers Today

Selecting a Personal Representative is a cornerstone of a solid estate plan. This decision will have a lasting impact on your family and the legacy you leave behind. It requires a careful balancing of trust, skills, and family dynamics. Taking the time now to make a thoughtful choice and to name qualified alternates can prevent immense difficulty for your loved ones later.

At Baddour Law Firm, we guide Maryland residents through every step of the estate planning process. We can help you weigh the pros and cons of your potential candidates and draft a comprehensive will that clearly documents your wishes. We are dedicated to providing the detailed and personalized counsel you need to protect your family’s future. Contact us today at 301-494-2108 to schedule a consultation. Our experienced team is ready to help you navigate these important decisions with confidence.