05 Jul Does an executor need to be in NJ?

Q. My brother is listed as the executor of my mother’s will but he is moving out of state. Do we need to make a change in the will or when my mother someday passes can my sister and I take care of things? I don’t see my brother coming back to Jersey for anything but the funeral.
— Concerned son

A. This is a very important question, and we wish more people would ask.

But for your family, the law in New Jersey will help your mom’s wishes.

Although some states allow only the decedent’s relatives or a non-relative who is a primary beneficiary of the estate to serve as executor if the designated executor lives in another state, New Jersey is not one of them, said Shirley Whitenack, an estate planning attorney with Schenck, Price, Smith & King in Florham Park.

She said under New Jersey law, individuals can name any adult they choose as executor — even if they do not live in New Jersey.

“An executor of a New Jersey estate who lives in another state must post a bond unless the will expressly waives that requirement,” she said. “Executors who live out of state may be able to probate the will without appearing personally at the county surrogate’s office and can conduct many tasks from outside the state.”

If, after your mother has died, your brother decides he does not want to serve as executor, he can renounce that position at that time, Whitenack said.

“If the reader’s mother is competent and wants to change her will to designate another executor she is free to do so, but she is not required to do so under New Jersey law,” she said.

You may want to have a conversation with your mom about who will take care of her affairs while she’s living if she’s unable to. If it’s your brother, but he’s out of state, she may want to reconsider who will take care of her finances and make health care decisions on her behalf.

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This post was first published in July 2016.