The executor of a will is responsible for sorting out or distributing the finances of an individual after the latter’s death. They serve as a legal personal representative and manage the estate of the deceased in accordance with the terms stated in the will. They ensure that the debts and taxes on the property are paid and distribute the remains of the property to the heirs as stated in the will. Sometimes, the executor needs to make decisions on when to sell the property so that the heirs receive a reasonable return. They may also be required to initiate and defend the legal proceedings on behalf of the property and the deceased. The legal process of making sure the property is distributed to the living relatives, and that any taxes or liabilities are paid is called probate.
Deciding the person to name as the executor of your will can be difficult. After all, it’s likely you’ve never had to make this decision before. You may not even know what the job of executor (or personal representative) requires.
What Does the Executor of a Will Do?
An executor is a person named in your will or appointed by the court if you do not have a will. They have a legal responsibility to see that the terms of the will are followed and that a deceased person’s affairs are wrapped up.
Typical executor duties include:
Who Should Be My Executor?
Because most wills are straightforward, little legal or financial knowledge is required to be an executor. It’s common for people to name loved ones as their executor such as:
Because the tasks of probate will require court appearances and property maintenance, it can be helpful to choose an executor who lives near the estate/home. Also, if possible, discuss the job duties of the executor of a will with the person you wish to name as your executor. It’s important that the person be willing to serve and that they understand where your bank accounts and records are kept.
Beneficiaries as Executor
It’s not uncommon to select an executor from among those who will inherit property under the will. Self-interest should ensure that they will protect assets and maintain real estate and that the process is completed in a timely manner.
Friends and Family Don’t Have To Be Your Executor
If you do not have surviving family members or friends, you can hire a bank, a trust company, a CPA, a corporate trustee, or a probate law firm.
Can I Name Co-Executors?
Often people worry about the responsibility of being an executor. They’ve never done it before and feel uncertain. You and they may feel more comfortable if you name a co-executor. This does not split the responsibilities or diminish their fiduciary duty. Each co-executor is fully responsible for ensuring the tasks of probate are completed. But it does provide two people to do the work. Some people name co-executors to avoid the appearance of favoritism. For example, they may name two adult children. The co-executors will need to have a good working relationship.
Are There Any Restrictions on Who I Can Name as My Executor?
Each state’s laws are different but generally, the following people cannot be named for the role of an executor:
Some states require that out-of-state executors also be primary beneficiaries. Review your state’s probate law requirements or ask your estate planning lawyer before you choose an executor.
What Qualities Should I Consider When Choosing My Executor?
While an executor does not need specific legal or financial knowledge, it certainly helps the probate process proceed efficiently if the executor possesses the qualities of:
Why good communication? Because family dynamics are extremely important after a death in the family. An executor who can’t, or won’t, communicate can worsen existing tensions. This could lead to family squabbles, will contests, or other estate litigation. Whether they should or not, your heirs may believe there is bad intent in your decision to name this or that person as the executor. It can help to discuss your choice with family members when you draft your will so they understand your reasoning. It’s wise to name an alternate executor at the time you write your will. Your first choice for executor may decline the responsibility when the time comes to do the work. They may have moved away. Or they may have died. If you have named an alternate executor, that person will be asked to fulfill the role by the probate judge. If your named executors are unable or unwilling to serve, the court will choose an executor for your estate.
An executor can be paid for their services. The money to pay the executor comes from the estate itself. The executor does not need to pay the estate’s expenses out of pocket. However, some states require out-of-state executors to obtain a bond to protect the estate from wrongful use of assets by the executor. Check the laws in your state and be sure that whomever you choose can cover the upfront cost of such a bond.
Many states allow a “reasonable fee”; some state statutes set a fee as a specific percentage of the estate assets. Family members do not always charge for their services as executors of an estate, but you will pay a fee to hire a professional for this service. If the will is complex, or if significant court time is required, an executor may want to hire a probate lawyer to assist in the handling of the estate, also at the estate’s expense.
Should My Executor Hire a Probate Lawyer?
The probate process is fairly routine and most people can accomplish it with little or no help from a probate attorney.
However, there may be reasons an executor wants to work with a probate lawyer, such as:
The executor may want to consult a lawyer or an accountant if the estate:
Ways an Executor Can Stay Out of Trouble
The ease of settling an estate will depend on three things:
Executors and Estate Administrators (henceforth referred to only as executors) are not immune to the conflicts; indeed, they are often the target. But, executors take heart: you don’t have to make every member of a quarrelling family happy. By your appointment as executor, you receive all legal authority to act on behalf of the decedent in matters pertaining to closing out the estate. Whether the heirs like it or not, the decisions are yours to make. You were placed in this position of trust by the court. Executors are held to what is known as the “reasonable person” standard: the executor owes the estate a duty to behave as a reasonable person would under the same or similar circumstances. Your obligation is to act honestly and prudently and execute your duties in a timely fashion. As long as you don’t violate that trust, the court will likely support your actions.
If challenged, you need to be able to provide evidence as to when and why you made a certain decision or performed a certain act. The best way to provide evidence is to keep a contemporary record of your actions. If a legatee claims that a conversation with you never took place, it helps immensely to be able to pull out your journal and say “according to my written record we spoke on June at 10 2pm; we discussed XXX and you said XXX”. It’s doubtful that anyone else will be taking notes; the fact that you are helps establish your conscientiousness and credibility. To establish a good contemporary record, do the following:
What Documents to Show an Executor
The family of a deceased person, or decedent, should assist the executor of the estate in every way possible. This includes providing documents the executor needs to settle the decedent’s estate. Some documents seem private, but the executor works as a personal representative of the decedent. She can’t settle the decedent’s estate without knowing personal details. If the family withholds information about assets or debts, the executor can take action through the probate court.
Some states ask the executor to present the death certificate when she petitions the court for appointment as executor of the estate. Additional copies are sometimes required to close accounts on behalf of the decedent. Many courts and businesses will not accept a photocopied death certificate; it must be a certified copy obtained from the state’s vital statistics department or health department.
Social Security Card
The decedent’s Social Security number is important in almost every step of settling the estate. If the original card is not available, obtain a replacement card or documentation through the Social Security Administration.
Although the executor does not always file the will with the probate court, she needs at least one copy to determine the distribution of assets and gifts. The will may also contain special instructions for paying certain debts, such as a special account for funeral expenses, and identify accounts for certain beneficiaries. If there is no will, the probate court will guide the executor in distributing assets to heirs.
Bank Account Statements
The executor needs original bank statements for every bank account that belonged to the decedent. Six months’ worth of statements are better than one, but a full year’s statements is preferred. The executor must try to determine all of the decedent’s assets and debts. Recurring deposits help her locate employers and other sources of income. Recurring payments made from accounts will help her locate debts when no other paperwork exists. The ending balance in the accounts is added to the estate’s total assets.
Bills and Debts
The executor is required to pay each verifiable debt in full from the assets in the decedent’s estate. The simplest way to ensure the executor has access to all known debts is to provide her with bills and account statements in the decedent’s possession at the time of death and then have any mail forwarded to a post office box set up for his estate. Final expenses, such as funeral arrangements, are part of the decedent’s debt unless they are paid by someone else.
If the decedent owned a vehicle free and clear, the title enables the executor to transfer ownership to the appropriate heir or beneficiary, or determine the value and sell it. A valid will may designate the vehicle as a gift; however, the executor may be required to sell the vehicle to pay a debt if there are not enough assets in the estate to pay debts. Money from the vehicle sale that remains after debt repayment then goes to the beneficiary or heir. If the vehicle is not designated as a gift, or if there is no will, the executor can sell it and add the money to the total assets for distribution to heirs.
The decedent’s primary residence usually transfers or passes to his spouse outside of probate proceedings. Passing outside of probate means the court and the executor do not have control over the property and the property is not included in the total assets for debt repayment or distribution to heirs. Because the executor acts on behalf of the decedent, he is required to sign the deed to transfer the property to the surviving spouse. If the decedent is not survived by a spouse, the executor needs a copy of the deed. Without a surviving spouse, the primary residence is factored into the total assets for bill repayment or distribution to heirs or a beneficiary.
Business Ownership Documents
Businesses owned by the decedent add a layer of complexity to settling the estate. In some corporate situations, the decedent’s share of the business automatically transfers to surviving members of the corporation. Small business assets and debts are often included as personal property in the decedent’s estate.
Final taxes vary based on many factors such as the volume of assets in the estate and businesses owned. Prior income tax returns assist the executor with filing final taxes, especially if the decedent has any outstanding tax debt. If there are no copies of prior tax returns in the decedent’s home, copies are available through the Internal Revenue Service.