In common law jurisdictions, a personal representative or legal personal representative is a person appointed by a court to administer the estate of another person. If the estate being administered is that of a deceased person, the personal representative is either an executor and if the deceased person left a will or an administrator of an intestate estate in other situations, the personal representative may be a guardian or trustee, or other position. As a fiduciary, a personal representative has the duties of loyalty, candor or honesty, and good faith.
In either case of a deceased estate, a probate court of competent jurisdiction issues a finding of fact, including that a will has or has not been filed, and that an executor or administrator has been appointed. These are often referred to as “letters testamentary”, “letters of administration” or “letters of representation”, as the case may be. These documents, with the appropriate death certificate, are often the only license a person needs to do the banking, stock trading, real estate transactions, and other actions necessary to marshal and dispose of the deceased’s estate in the name of the estate itself. If you are named as executor or appointed by the court, you will take responsibility for properly handling and distributing the assets in the decedent’s estate.
Understanding an Executor’s Duties
Learn what an executor does: Generally, an executor (or “administrator” or “personal representative”) preserves the deceased’s estate in order to pay off debts and taxes before distributing the remainder to the people entitled to it. The full set of duties is extensive. A partial listing includes:
• Filing the will in the probate court: You must file the will in the appropriate local court even if the will does not state that you must do this.
• Determining whether the will needs to be probated: Not every will needs to go through probate. Depending on your state, you may be able to avoid probate altogether by using a “summary administration” procedure or by using informal administration. You will need to consult your state law to determine what non-probate options are available.
• Finding the deceased person’s assets and keeping them safe: You will need to collect estate property held in the hands of other people. You must also protect them. This may require that you rent storage facilities.
• Contacting agencies and businesses: You will need to close various accounts that the deceased had, such as bank accounts, credit card accounts, and various insurance policies. You will also need to contact pension plans, the Social Security Administration, and any other governmental or private organization that paid the deceased benefits.
• Finding creditors the deceased owed money to and paying off legitimate claims: If you know the creditors by name, then you will contact them directly. You will probably also have to advertise in a newspaper where the decedent lived. After you receive claims on the estate, you will have to decide which are legitimate and pay them.
• Contacting anyone in debt to the deceased and collecting on the debts: As the executor, you will need to make sure that you collect on debts owed to the deceased so that this money can be added to the estate and then distributed to beneficiaries.
• Paying taxes: If the estate owes taxes, then the executor is responsible for making sure that they are paid accurately and on time.
• Distributing property specifically given to beneficiaries or heirs: The will likely designates specific pieces of property to individual beneficiaries. You will be responsible for coordinating with the beneficiary for delivery or pick-up.
• Liquidating the remainder of the estate: Some estate property will not be distributed by the will; also, no family members may want them. If this is the case, you need to sell this property and then distribute the proceeds to beneficiaries.
• Closing the estate: As the executor, you will be responsible for informing the court that all assets have been distributed and you must petition to close the estate.
Understand potential liability: As an executor, you have a duty to exercise reasonable care when dealing with the estate’s property. You also owe the beneficiaries a duty of loyalty and good faith. If you breach either of these duties, then the beneficiaries could sue you in court.
• You will discharge your duty of reasonable care if you use the same amount of care when handling the estate’s property as you would use when handling your own. You discharge your duty of loyalty when you administer the estate solely in the beneficiary’s interest and not in your own.
• State law may impose additional fiduciary duties, which can often be quite specific. For a full list of fiduciary duties, you should contact a lawyer.
Research potential compensation: You typically can be compensated for the work that you perform as the executor. Compensation levels depend by state. States often peg the amount of compensation to the size of the estate.
Weigh the pros and cons: Before taking on the responsibility of becoming an executor, you should take some time to consider whether or not you want to do the job. A good executor is careful, patient, organized, and focused on doing an excellent job. You should also consider:
• The amount of time you have to commit: Look over the list of responsibilities and then take a look at the size of the estate. An executor can spend six months or more administering an estate.
• How familiar you are with the estate: If you have been helping an elderly parent get his or her financial assets in order, you may be very familiar with the estate already. This familiarity can increase your comfort in the role of administrator and the speed with which you can handle the administration.
• How well you get along with the beneficiaries: If you are afraid of being second-guessed, or if you think emotional disputes are likely, you may not want to serve.
• Whether or not there is anyone else who can do the job or help serve as co-executor: If you think someone would be more competent at the job, you may wish to defer to her or him.
• You should realize that even if you are named as the executor in a will you can decline.
• Also realize that you can stop being the executor at any time. You will need to provide the probate court with a written record of what you have done.
Meet with an attorney: If you have questions about being an executor, including the extent of fiduciary duties, then you should contact an experienced attorney. A probate attorney can also help you consider whether or not you want to be the executor in the first place.
• Should you become the executor; some states will require that you hire an attorney. You can find an experience probate attorney by contacting your state’s bar association, which should run a referral service.
Requesting Appointment as Executor if not Named in the Will
Get a copy of the form for appointment as executor: If you have determined that you are qualified to serve as the executor of the decedent’s estate, then contact the probate court to get the form necessary for appointment as executor from the Clerk of Court.
• You can get the form online or by visiting the court in person: Forms vary from state to state, so make sure that the form you fill out specifically references your state.
Fill out the application form properly: Make sure that you follow all instructions when completing the form. Avoid common mistakes when filling out the form. These might include:
• Not correctly notating the full name of the deceased.
• Incorrectly completing the information asked for.
• If you have any questions about completing the application, contact the clerk of the probate court. Many clerks will help potential executors and answer questions.
Have form notarized: Most states require that the form be notarized, sworn to or witnessed. Find a notary public in your area.
• Be sure to bring sufficient personal identification. Typically, a valid driver’s license or passport will suffice.
Identify if you need additional documentation: Some jurisdictions require other information from potential executors; make sure that you know what documentation you need and bring that documentation to the probate court with you.
• You will likely need to include a death certificate for the decedent as well.
• Bring your application to the Court Clerk’s office. File your application in the jurisdiction where the estate is held.
• You don’t need to make an appointment, but you should check the hours of the Office either online or by calling.
• Be sure to make multiple copies of the forms for your own records.
Pay the filing fee. In order to file your application, you will need to pay a fee. Make sure that you can pay the filing fee at the time you turn in your application to the court. If you do not know how much the fee is, call the probate court or look online.
Send out a Notice of Application: Typically, you must also notify persons with an interest in the estate that you are applying to be executor. Most states have a “Notice of Application” that you may send out to all estate beneficiaries or interested parties.
• Publish a notice in the local newspaper. Check with the court to ensure you are doing this properly.
• Send a notice to beneficiaries, heirs and creditors.
• Alert the court that you have distributed Notice of Application.
Obtain a surety bond if required: Some states require that the proposed executor post a surety bond insuring the value of the estate. A surety bond is an insurance policy against wrongdoing. When the executor purchases a bond, the insurer agrees that if the executor makes a mistake in the process of settling or handling the estate, either deliberately or unintentionally, it will compensate the beneficiaries under the will for any money lost.
• If the will’s testator names an executor in the will, the bond may be waived. This may be the case if the testator specifically states that the executor does not have to secure a bond.
• A bond is typically required in all other circumstances. That is, a bond is required when the will does not waive the requirement for the named executor. A bond is also required if the will does not name an executor at all.
• To obtain a surety bond, search online for a company that provides bonds for your area. You can also check with the Clerk of Court, who will be able to recommend a reputable company.
Attend the hearing: At the hearing, any beneficiaries or heirs present may object to your appointment as executor. At the same hearing, the court will attempt to validate the will, which may also be challenged by someone.
• If there are no objections to either the will or your appointment as executor, then there may not even be a hearing.
Handling a Contestation of Your Application
Contact an attorney: If someone files an objection to your appointment, contact a probate attorney for advice on how to fight the challenge. This attorney will give you advice on the best strategies for winning your case at a trial.
• Consult with an attorney experienced in probate law, with experience in trial work. You can look at the attorney’s website to see if he or she has handled contested wills or appointments before. Be sure to ask about any relevant experience when you meet for a consultation.
• Also look for certification in probate. Some states will grant specialty certification
to attorneys in various areas, including probate. To qualify, the attorney must have demonstrated significant involvement in the field and pass a written exam.
Develop a trial strategy: You may not know why you are being challenged. Nevertheless, there are common grounds for challenging the initial appointment of an executor. For example:
• The objector might argue that the will is invalid. For example the will may have been forged or improperly witnessed.
• The objector might claim that you are unfit to serve. For example, if you served jail time, then the court could find you unfit. Also, if you lack sufficient mental capacity, then the court may grant an objection to you serving as executor
Schedule a trial: If someone contests your appointment as executor, the probate court will schedule a trial. The trial will allow you and your challenger to present your respective cases.
• You will probably attend a hearing before the trial. At the hearing, you will learn why the objector is challenging your appointment. You will also set a trial schedule and trial date.
• Only parties who have a stake or possible stake in the decedent’s estate can challenge the appointment of an executor.
Present your case at the trial: You or your attorney can present your case to the judge. It is best to have an attorney, as probate issues can be complicated.
• Your evidence will track whatever the objection is. For example, if the objector claims that the will was improperly witnessed, then you will need testimony from the witnesses. This testimony should affirm that the deceased was in sound mind when he or she signed the will.
• If your capacity to serve is challenged, then you may need to present evidence of your mental condition. Talk with your lawyer about what evidence you would need.
Wait for the judge’s ruling: After hearing both sides of the case, the Judge will either rule on your appointment immediately or take the issue under advisement and issue a written ruling at a later date. If you are appointed, the court will prepare a certificate of appointment for you, which will designate you as the executor of the estate. In some states, this document is called the “Letters of Administration.” If you are not appointed, the Judge will appoint another executor in your stead.
Conclusion
Don’t delay after being appointed executor. Some decisions must be made fairly quickly. Any delay may result in more difficulty in locating and preserving the assets. If you are appointed as executor, consult with an attorney experienced in probate law.
Legal Assistance
Individuals who are considering drafting a trust or a will may wish to consult with an estate planning lawyer. He or she can explain the advantages of using a trust as well as a will. He or she can make recommendations based on the specific considerations of the client. He or she may even recommend using both documents, such as by using a pour-over will that places any property owned at the time of the testator’s death into the trust.
