The entirety of a person’s belongings, property, and assets are generally 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. They also need someone to ensure that debts and other financial matters are taken care of.
The person appointed to perform these tasks is called an “executor of the estate”. Duties of the executor can be broad and may include a wide number of tasks, depending on the nature of the estate involved.
The executor of an estate is typically 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 will usually appoint a person to act as executor. This will usually be a close friend or family member of the deceased person. It is also possible for a person to apply to be the executor in some cases.
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 appropriate beneficiaries. The executor has a “fiduciary duty” to act in a manner of good faith and impartiality in making sure the desires of the deceased are carried out to whatever extent possible.
This means that they must take reasonable steps to fulfill whatever instructions the deceased person has left behind with regard to their property and assets. They also have a duty to refrain from certain types of actions or conduct, such as using the deceased person’s assets for their own 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 various steps and procedures, including:
- Tie Up the Day-to-Day Loose Ends: 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. They must also make sure to terminate any credit cards and leases.
- Use the Funds from the Estate to Pay Any Ongoing or Outstanding Expenses: This usually includes paying any property expenses having to do with property still held within the estate.
- Pay Off Debts and Taxes: The executor must file a final income tax return on behalf of the deceased person; creditors must be notified if there are any probate proceedings.
- Set-Up a Bank Account for Money Owed to the Deceased: The executor should make sure to have an estate bank account that holds money. This will be collected for the deceased’s assets, such as any paychecks, stock dividends, etc.
- Make Arrangements for Probate Proceedings, If Necessary: The executor should check to see how much the estate must be worth in order for probate to be required under state laws.
- 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 law to see who is entitled to inheritance. The executor is not deciding who inherits, but determining who was mentioned in the will and ensuring they have the right person.
- Distribute Property Whenever Possible: Even if probate is required for some types of property, other property might be distributed immediately to the beneficiaries.
- Find and Manage the Deceased’s Assets During the Probate Process: Some property may need to be located and identified.
- Supervise the Distribution of Property and Other Assets to the Beneficiaries in the Will: The deceased may have left very specific distribution instructions regarding certain beneficiaries or certain items of property.
So, as you can see, an executor may be required to perform many different duties to fulfill their role. As such, the selection of the executor is a very important decision, and careful thought should be exercised when choosing one.
Can an Executor Be Removed From Their Position?
In many instances, an executor can be removed from their role if they are not sufficiently fulfilling their duties. As mentioned, the executor must act in good faith and exercise impartiality when performing their duties. Failure to do so may result in them being removed from the position.
Usually, the person requesting a removal of the executor from their position must file a request with the court. This request should provide a valid reason for the removal, as well as any supporting evidence for the removal.
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; and
- Any violations of law.
In some cases, suing an executor may be necessary. This can happen for instance if their conduct results in severe losses to the estate, requiring legal action to help recover the losses.
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, or will be acting as one, you may want to consult an estate lawyer who has experience with estate administration. Your attorney can help you fulfill those duties, and can help determine what exact steps and actions you need to take.