What Does an Executor Do?
This article will detail the duties and tasks of an executor (or executrix) through the various stages of the probate process.
Being asked or named to serve as the "executor" of someone's last will and testament is a position of great trust. You have a responsibility to make sure:
- The person's last wishes are carried out
- The people they loved receive the benefits intended for them
At a time of grief and uncertainty, the executor steps in to handle the details, bringing order and perhaps even prosperity to heirs and beneficiaries.
When a person dies, all of the deceased's possessions become a part of their estate. This must then be administered according to the will of the deceased person. The person nominated in a will to handle the administration of the estate is the "executor."
Just as a quick summary, estate administration refers to the process of collecting the estate, paying any debts or taxes owed by the estate, and distributing the remaining property of the estate to the beneficiaries.
The Executor's Role: The Basics
The executor is the person responsible for locating and collecting all of the deceased's property, making sure any debts and taxes are paid off, and distributing the remaining property and money to the beneficiaries.
The money to pay off any debts or taxes comes from the estate. In addition, the executor is entitled to a lawyer, and in some cases an accountant if they need help with their duties.
Some more specific examples of what an executor can be tasked with doing include:
- Obtaining a death certificate
- Initiating the probate process
- Filing paperwork in probate court
- Contacting the beneficiaries of the estate
The executor is required to perform their tasks in accordance with the will and in compliance with the probate laws of each state. The executor is also required to perform their duties diligently and in good faith.
Choosing Your Executor
There are very few restrictions on who can be an executor. Generally, the executor can't be a person under the age of 18 and can't be a felon. In some states, there could also be restrictions on a person who lives out-of-state serving as an executor.
Usually, legal or financial knowledge isn't necessary to serve as an executor because wills are usually straightforward. And, if the will is complicated or difficult to understand, the executor can consult with an attorney.
Who Typically Serves as Executor?
Since there aren't many restrictions or requirements for being an executor, usually people appoint a spouse, child, or sibling as the executor of their will.
It's important to choose a person who is honest, responsible, and organized. If you're selecting a family member to serve as the executor it's also a good idea to consider what impact the selection will have on your family.
For example, if the youngest of three children is named as the executor, the two older children might feel that they were not trusted or worthy enough to serve as the executor. This can lead to problems between siblings, and maybe even a will contest.
Another factor to consider when selecting an executor is where the executor lives. It's much easier for an executor to perform their duties if they are close to the majority of the estate's assets. Finally, it's a good idea to name an alternative executor in case the originally named executor can't or doesn't want to serve as the executor.
Whoever you name as your executor, it's important to let the person know that you want them to serve as your executor. Letting the person know allows the person to accept or decline to serve as the executor. You should also tell the person where your records are kept and probably give them a copy of your will.
The Executor of a Will Has a Fiduciary Duty
The executor of an estate is typically a family member or a close friend. They are usually not a lawyer or a financial expert and they don't need to possess specialized knowledge or skills. But they do have a special duty — a fiduciary duty — to act in the best interest of the deceased person's estate and his/her beneficiaries.
This fiduciary duty includes:
- A duty of loyalty: The executor puts the interests of the estate and its beneficiaries before their own interest. They don't engage in self-dealing.
- A duty of good faith: The executor acts with honesty and fairness.
- A duty of care: The executor avoids harming the interests of the beneficiaries. They are diligent in their duties. They keep private information private. They do not take unnecessary risks with estate assets. They act with prudence.
- A duty of obedience: The executor does as instructed by the will and the court, within the scope of their authority.
Because the named executor has a fiduciary duty to the estate and heirs, they can be held legally liable if they fail in that duty. It is not a role to be taken lightly.
But it is also not a job to be feared. The probate process is well established and overseen by the probate court. An estate executor will receive instruction from the court and can seek legal advice and professional help from a probate lawyer.
What Does an Executor Do?
There are many duties that the executor of a will may have to fulfill, depending on the complexity of the will and the property to be distributed. The following is a high-level description of the executor's duties. (See also, a checklist of duties.)
- Probating the last will and testament in court, if necessary. Probate is a court-supervised process that validates a will and oversees the process of distributing assets. Depending on the laws of your state and the value of the property, some wills may not be required to go through probate, but the will must still be filed with the probate court.
- Wrapping up financial affairs. The executor will need to notify creditors, credit card companies, life insurance companies, government agencies, and others of the person's date of death. The executor may need to provide copies of a death certificate to stop financial obligations or to secure the benefits of insurance policies or Social Security Administration death benefits. If the deceased person was already collecting Social Security benefits, the Social Security Administration should be contacted to stop future payments.
- Finding the deceased person's assets. The executor is responsible for finding, gathering, securing, maintaining, and selling or distributing the assets of the estate. If the decedent was owed money, the executor needs to collect it. If the decedent had valuable personal property stored in a safety deposit box or at some other location, the executor must get access to them.
- Valuing of real estate and personal property. In the process of estate administration, the executor may need to get help understanding the value of the decedent's property in order to ensure a fair distribution.
- Setting up a bank account for the estate. Executors must keep estate funds separate. They will need to set up a bank account on behalf of the estate in order to receive funds owed and to pay estate debts. The funds in the estate's bank account can be used for ongoing expenses such as mortgage payments, utilities, and home insurance. These payments protect the value of the estate.
- Paying off creditors. In general, the deceased person's debts and liabilities must be paid before any beneficiary can receive their inheritance. The “estate" to be distributed is what remains after all the bills have been paid.
- Paying taxes. The executor of a will is responsible for making sure that the deceased person's final income tax return is filed for the last year they were alive. They must file an estate tax return. The executor ensures any taxes are paid.
- Finding Beneficiaries. The executor is in charge of making sure the property that is named in the will goes to the rightful beneficiary. They will need to find and contact the beneficiaries named in the will. The executor may choose to work with a tax accountant to accomplish this task.
- Distributing the deceased's property. Once debts and taxes have been paid, then assets and property should be distributed according to the terms of the will. If there is property whose distribution is not covered in the will, it should be distributed according to state law.
What If There Is No Will?
If there is no valid will in place at the time of death, estate assets and property are distributed based on the intestate succession laws of the state where the property resides. This process is called estate administration and the person is called an administrator.
Looking for Help to Fulfill Your Role as an Executor? Speak with a Probate Lawyer
If you have been asked to be the executor of a will, or if a loved one has died and named you as an executor of their will, you may want to speak to a lawyer about the work this entails. Probate law firms specialize in this area of law and will be happy to help. Contact a local estate planning attorney.
Can I Solve This on My Own or Do I Need an Attorney?
- Complex probate situations usually require a lawyer
- A lawyer will take these matters seriously and enforce protections
- Get tailored advice and ask your legal questions
- Many attorneys offer free consultations