A will is an estate planning document that allows a person, also known as a “testator,” to designate how their property will be distributed upon death. The property that may be disposed of in a will could include real or personal property. A will typically includes the designation of an “executor.”
Duties of the Executor
What is an Executor?
The entirety of a person’s belongings, property, and assets is referred to as their “estate.” When a person passes away, they will need someone to manage their estate and ensure that all property is distributed in the way they want, according to their will. They also need someone to handle debts, taxes, and other financial matters.
The person appointed to perform these tasks is called the “executor of the estate.” The executor’s duties can be broad and may include many tasks, depending on the nature of the estate involved.
As mentioned, the executor of an estate is typically personally named in the will of the deceased person. If no executor is named in their will, or if they died without a will, then the state probate court (the court specially designated to hear will disputes and contests, as well as to supervise the execution of a will’s final desires) will appoint a person to act as executor. This will usually be a close friend or family member of the deceased person. In some states, it is also possible for a person to apply to be the executor of someone’s will.
What is the Basic Duty of the Executor of an Estate?
When a person dies, the executor of the estate must make sure all of the deceased person’s taxes and debts are paid and then distribute what is left to the beneficiaries named in the will. The executor has a “fiduciary duty” to act in good faith and impartiality to ensure the deceased’s desires are carried out to any extent possible.
“Fiduciary duty” means they must take reasonable steps to fulfill whatever instructions the deceased person has left behind concerning their property and assets. They also must refrain from certain actions or conduct, such as using the deceased person’s assets for personal gain or profit.
What Must the Executor Do to Fulfill their Role?
The executor of an estate has many jobs and tasks in order to fulfill their duty. These can include (in this order):
- Obtain the original of the latest will of the deceased
- Obtain the death certificate
- Make arrangements for probate proceedings, if necessary: The executor should check to see how much the estate is worth to determine whether probate proceedings will be required by state law. This is a time when it is very advisable to consult with a knowledgeable local attorney to help negotiate the probate process
- Notify certain interested parties of the testator’s death: The executor must notify financial institutions (e.g., banks, lenders, brokerages) and governmental institutions (e.g., Social Security Administration, Medicare, and Medicaid) of the person’s death. If there are probate proceedings, creditors must be notified
- Terminate any credit cards and leases
- Find and manage the deceased’s assets during the probate process: Some of the estate’s property may have gone missing. Other property may be in the hands of someone other than the intended beneficiary. The executor is responsible for locating and identifying any missing property and ensuring that it makes it into the estate to be distributed per the will or intestacy law
- Pay any ongoing or outstanding expenses: Pay these last expenses from the estate’s funds. This usually involves paying any expenses having to do with the property still held within the estate or with the expenses associated with the deceased person’s illness, death, funeral, or other final expenses
- Pay taxes: The executor must file a final income tax return on behalf of the deceased person. Any taxes due must be paid from the estate’s funds, not the executor’s
- Set up a bank account for money owed to the deceased: The executor should create an estate bank account that holds money collected for the deceased’s assets, such as any paychecks, stock dividends, sales of personal or real property, etc.
- Determine who inherits what property: If there is a valid will in place, the executor should use that as a reference; if not, the court will refer to state intestate law (law concerning what happens if a person dies without a will) to see who is entitled to inheritance. The executor is not deciding who inherits but rather is determining who was mentioned in the will and which gifts are meant to go to whom
- Sell any property that is not designated to go to a specific beneficiary. This could include personal property or real estate
- Distribute property whenever possible: Even if probate is required for some types of property, other property might be distributed immediately to the beneficiaries
- Supervise the distribution of property and other assets to the beneficiaries identified in the will: Hopefully, the deceased left very specific distribution instructions regarding certain beneficiaries or certain items of property.
As can be seen, to fulfill their role, an executor may be required to perform many complex duties. For this reason, selecting the executor is a very important decision, and careful thought should be exercised when choosing one.
Can an Executor Be Removed From Their Position?
An executor can be removed from their role if they are not sufficiently fulfilling their duties or if they are not acting in good faith and exercising impartiality when performing their duties. Failure to do so may result in them being removed from the position.
An executor may also be removed for the following reasons:
- Using the estate funds, property, or assets for their own purposes
- Commingling estate funds with their own funds
- Any instances of fraud in connection with estate assets or debts
- Any other violations of the law
To remove an executor, the person requesting the removal of the executor from their position must file a request with the probate court. This request must provide a valid reason for the removal and any supporting evidence.
Sometimes, doing more than just removing the executor may be necessary. If their behavior has caused losses to them and legal action is required to recover from them, it is possible to sue an executor, and in some cases, it may be necessary.
Do I Need a Lawyer If I Have Issues with an Executor of a Will?
If you have any legal issues connected with an executor, you may want to consult an estate lawyer with estate administration experience. If you are unhappy with the executor of a will in which you have an interest, you must bring your case to the probate court. If the matter has not already been submitted to probate, you will need to file the necessary paperwork to get the probate court involved.
If you are the executor, your attorney can help you fulfill your duties and can help determine what exact steps and actions you need to take.
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