Q: Is it OK to name an out of state person executor? If so, what are the pros and cons?
A: Choosing a personal representative is an important decision that requires a great deal of thought and consideration. You are entrusting someone to wrap up your affairs and to make sure that your family is taken care of. In other words, your decision should not be taken lightly.
Indiana has established a couple of requirements that a person must meet to be appointed personal representative. A personal representative must be at least eighteen years of age and cannot be incapacitated except for an incapacity caused by physical illness, impairment or infirmity. Yes; you can actually be infirm and be a personal representative.
Assuming that you meet the above qualifications, you must also not be convicted of a felony or someone that the court does not find unsuitable. The code doesn’t define unsuitable. However, I’m guessing it’s like art; you know when you see it.
In your case, you want to name a person who lives outside the state of Indiana. Indiana will allow you to appoint an out-of-state individual. However, in addition to meeting all of the qualifications that I listed above, he or she would also have to post a bond and appoint a “resident agent”. The resident agent will accept service of process, notices and documents. The goal is to make sure that the out of state personal representative submits to the personal jurisdiction of the probate court. This is important since the court’s authority stops at the state line.
So there you go: assuming that the person you choose meets all of the conditions that the court and the state of Indiana set, they should be able to serve as a personal representative.
The only Pro to naming an out of state resident is that you get to choose the person that you most want. Remember to pick the most qualified personal representative, not necessarily the oldest.
The Cons to naming an out of state personal representative include having to meet all of the qualifications and conditions that I previously discussed. In addition, I think distance could be a problem as the personal representative may need to attend hearings and meetings. Also, if things are done through the mail, it could slow things down as the attorney has to wait for papers and pleadings to be signed and returned.
Personally, I think it’s important to choose the right person for the job. Residency will be a factor but nothing that can’t be overcome. So choose wisely and trust that things will be fine.