The executor plays a very important role after the testator (the person to whom the will relates) dies, including the tasks of tracking down assets, paying creditors, and making sure beneficiaries named in the will receive the property to which they are entitled.
An executor is someone appointed by the court, often nominated in the will, who is given the legal responsibility to take care of a deceased person’s remaining financial obligations. This means taking care of everything from disposing of property to paying bills and taxes. Most executors are immediate family members, with spouses, children, and parents being the most common executors.
Executors, as part of winding down an estate, will often perform the following functions, with the money to perform these duties coming from the estate itself:
The person named as an executor in a will can decline the responsibility that being an executor entails. In addition, someone who originally accepted the role as executor can resign at any time. As a result, it is generally recommended that you name alternative executors, otherwise a court will appoint a replacement executor if your original choice bows out for some reason.
Generally, most executors perform their duties without payment, but executors are entitled to payment. The reason most executors don’t request compensation is that most executors are close family members and perform their duties out of respect for the deceased. The amount an executor gets paid is set by state law and what a probate court decides is reasonable under the circumstances.
Many wills are fairly routine and simple and require no specialized knowledge. Even if a will goes through probate court, the paperwork required does not require a legal degree. However, if there are disputes, complex property issues, significant tax liability, etc., then an executor should seriously consider getting professional help in the form of a lawyer. An executor may use a lawyer as a resource to ask legal questions, or the executor may turn the entire probate process over to the lawyer.
It’s important to name an executor because they will be the person in charge of taking care of your estate. If you do not choose one before you die, the courts will be in charge of appointing an administrator to execute your wishes, and this person may not be someone you would have wanted to act in this role. Responsibilities of your executor include paying off estate debts, recovering money owed, paying your final tax return, and distributing assets and gifts to your beneficiaries. Your executor is also responsible for handling your funeral and burial wishes, including the organization of your funeral or cremation.
When you prepare your will, you appoint the executor to follow the direction laid out in your will. They may collect debts, pay bills, sell property and/or businesses, file your final tax return and distribute assets in accordance with the direction in your will. There’s a lot to do and it’s an important job.
They also have to communicate with the heirs on a regular basis to keep them happy with the progress of the estate settlement, as well as advertising for creditors deal with creditors, courts, lawyers and the Revenue Agency. It can be time-consuming and stressful so it’s important to choose the right person or people. Be sure to name a contingent or backup executor in case the first one you name is unable to fulfill the role for any reason
An executor and an Estate Trustee are two different roles, but the same person can fulfill them (on Willful, you select one person to fulfill both roles). The difference is that executors take care of the entire estate administration process, and once that is completed (typically in 12-18 months), their role concludes. If you have minor children when you pass away, Willful wills trigger the creation of what’s called a testamentary trust, which holds assets in trust until the age at which you stipulate in your will (for example you may choose for the child to receive their inheritance when they turn 18, 21, or 25 on Willful). Your trustee manages that trust (filing tax returns, releasing funds for the child’s care to their guardian, etc.). In their role as trustee, they would only handle the trust (assets that are being held for legatees), and work with legatees named in that trust. While the liquidator’s role ends as soon as the estate administration process is complete, a trustee may act in that role for a much longer period of time.
Can I Choose Two Different People To Act As Executor And Estate Trustee?
At this time, Willful only provides the option to appoint one person to act in the role of both executor and estate trustee.
Here are some important things to consider when selecting an executor for your will.
Choose an executor who is comfortable with the responsibility
Being an executor can be a stressful role, especially under the circumstances. They must be an organized and level headed person, able to make critical decisions during a potentially stressful time.
Choose an executor who will be available
Is your executor available to take on this role? Choosing someone who is available both physically in terms of location, and mentally is essential. A person who loves to travel or lives off the grid may not be the best person to pick.
Choose an executor you trust
Although the plan you outline in your Will is legally-binding, it’s still important to choose someone that you believe will execute your wishes and represent you well after you’re gone.
Choose an executor who is likely to be alive
Morbid – we know – but choosing someone who is expected to be alive and in good health after you’re no longer around will avoid any headaches for your family down the road.
Review your executor regularly
Like the rest of your will, you should review and update your choice for executor as life happens. Monumental moments such as the birth or adoption of a child, moving to a new home, or divorce may trigger you to make changes to your will and to review your chosen executor.
Can I Appoint More Than One Executor In My Will?
You may want to appoint multiple executors – for example maybe you have two people you want to share the position, or you’d like to appoint a professional executor in tandem with a family member. It’s important to ensure your executors get along and are clear on your wishes, as appointing two people can lead to disagreements. With the Willful platform, you can currently only choose one executor, but we are working on the ability to appoint a co-executor, and the ability to appoint a professional executor. A professional executor can be a trust company, an individual, or a financial institution – they specialize in closing up estates, and you may want to appoint them if you don’t have a family member who you feel would handle this job well. Your executor can also hire someone to help after you pass away to guide them through that process.
However, we do highly recommend choosing a backup executor. Your initial choice may be unable or unwilling to perform in this role, so it’s important to have someone else who can step into this role if needed. There is a spot to add a backup on the Willful platform in the Executor and Trustee section.
Inform Your Executor
Lastly, it’s important to remember to sit down with your chosen executor to make sure they are willing to take on the role, go over the essential responsibilities and to inform them where they can find the most recent copy of your will and other information they may need to settle your affairs. You should also register your will on Utah Will Registry to ensure your executor knows where it is – so if they forget, or you forget to tell them, your executor can perform a search to find out exactly where it’s located.
Being someone’s executor can be a big responsibility.
Some responsibilities and duties of an executor include:
If you are unexpectedly named an executor of an estate, and you are unable or unwilling to take on the responsibility, you can always choose to not accept the role. However, if someone lets you know that they would like to name you as their executor, it’s important to let them know if you are uncomfortable with the role sooner rather than later, so they can choose someone else! If you know you’ve been named an executor of someone’s estate, it’s usually helpful to speak with them to ensure you understand their wishes as well as know where you can find a copy of their will!
Can An Executor Change A Will?
No, an executor cannot change a will after you’ve passed away. It is their duty to act in the best interest of the estate and carry out the wishes you have expressed in your will. If a beneficiary believes that an executor is not following your intentions or are making mistakes, they have a right to take legal action to ensure that your intentions are followed.
Is There Any Personal Risk When Acting As An Executor?
Acting as an executor carries considerable personal risk. In fact, there are up to 18 areas with supporting case law where executors can be sued personally. In Utah, executors can be fined up to three percent of the entire estate and if they’re found to have benefitted from making a mistake, (such as if they’re also an heir), they can be put in jail for up to two years.
One way to mitigate that risk is to obtain executor liability insurance, though most people don’t know it exists, leave it too long to apply and get turned down, or find that arguments over who should pay the premium is the first family fight. The best way to protect executors is to get a guaranteed issue, paid up policy at Executor Protector.
