The executor of an estate is a person who is named in the will of a deceased person (known as the testator) as the representative of that deceased person’s estate. Executors have specific duties and responsibilities to administer and manage the estate. They help make sure that debts are paid and that the property of the estate is distributed according to the testator’s wishes.
The executor of the estate is tasked with the responsibility of making sure that the testator’s intent and interest is protected and carried out in accordance with the terms set forth in the will. Usually, the executor named in the will is a parent, child, or other relative of the testator, although occasionally the testator may choose to name a close friend.
What does an Executor Do?
The main duties of the executor are to make sure that any debts or creditors that the testator had in life are paid off, and that the remaining money and property of the estate is distributed to the people who are inheriting according to the terms that are set forth in the will.
Depending on the nature of the estate, the duties of the executor may involve a number of specific duties, including
- Finding the testator’s assets. The executor is required to manage and keep the testator’s assets safe until they can be distributed to the will’s beneficiaries. This management can also include making sure that the accounting of the assets is true and accurate, and making decisions regarding which and what types of assets to sell (for instance, if funds are needed to pay taxes or creditors), and which assets to keep;
- Finding and contacting the people who are supposed to inherit under the will. The executor is generally the contact person for the estate, and is in charge of making sure the property named in the will goes to all the right people;
- Making sure the will is filed in the appropriate probate court;
- Setting up a bank account for the estate. Since the executor is required to manage and protect the assets of the estate, it is wise to keep the estate’s funds completely separate from the executor’s personal funds. Setting up a separate bank account in the name of the estate can make it easier to pay taxes and creditors;
- Continuing necessary payments. Some recurring payments, like insurance or mortgage payments, will need to keep being made during the administration of the estate. Having a bank account in the name of the estate can help greatly with making sure these payments remain up to date;
- Paying off debts and creditors. Generally speaking, before any of the property in the estate can be distributed to a beneficiary under the will, the executor must make sure that the testator’s debts have been paid. This usually means that the executor must send notice of the testator’s death to all creditors and find out how they want to proceed;
- Paying final income taxes. Believe it or not, you still have to pay income taxes after you die (at least one last time.) The executor of the estate is responsible for making sure that the testator’s income taxes for the last year of their life are paid in full;
- Ensuring the distribution of the testator’s property. Usually, the testator’s will has specific instructions on who should get which pieces of property, and how to distribute the testator’s assets. The executor’s job is to make sure everyone gets what they’re supposed to under the will.
If a person dies without a will, the property is required to be distributed based on the state’s laws of intestate succession. These types of estates don’t have executors; the person who takes care of the process in cases of intestate succession is usually called an administrator.
Who Can Be an Executor?
An executor does not necessarily have to be a legal or financial expert. Some states may have specific requirements or prohibitions for executors (such as having reached the age of adulthood). However, the person drafting the will has complete freedom in choosing who will be executor of the estate. In most cases, unless there is a clear indication that the proposed executor is mentally incompetent or presents a clear threat to the estate, deference is given to the person named in the will.
Selecting a qualified and responsible person as your executor will help make the probate process smoother, ensure that your final wishes are carried out properly, and help prevent any additional difficulties or burdens on your heirs. While the executor is not required to be a beneficiary under the will, many people consider selecting one of the beneficiaries as the executor is an effective choice.
Does an Executor Get Paid?
Most executors who are appointed to the role under a will perform the duties out of respect for the testator’s final wishes, and do not wish to be paid for their services. However, the executor does have a right to be paid for performing their duties.
Each state has specific rules regarding payment of executors, often based on certain factors like the value of the estate and what the probate court determines as the reasonable value of the executor’s services and time.
How Do I Choose the Right Executor?
Naming the right executor in your will is an important choice. Depending on the requirements of the estate, an executor’s responsibilities can quickly become complicated and time-consuming. Important factors to consider in an executor are trustworthiness, an ability to take on challenges, an awareness of the likely duties involved, and the willingness to undertake the responsibility.
Does the Person Named Executor Have to Accept the Duty?
No. Just because a person is named executor under a will does not mean that they have to accept the responsibility. Someone who agrees to be an executor can also decide to resign at any time. If the will names an alternate executor, then that person can take over. However, if the will does not name a back-up, then the court will have to appoint someone to step in and fill the role.
I am an Heir. Can I Contest Who Was Appointed Executor?
Yes. Heirs under the will have the right to contest executor appointments. Interested parties to the will (mainly the people who stand to receive property) can initiate court proceedings to disqualify executors (if necessary) for a number of reasons. These may include mental incompetence, inability, or mismanagement. If the executor is removed from their position, the court will most likely appoint a replacement if the will does not name an alternate executor.
Do I Need an Attorney for Help with Executor Selection Issues?
While you don’t strictly need to consult a lawyer to figure out who you want as your executor, it is in your best interests to talk to an estate planning attorney if you are in the process of planning and drafting your will. The right attorney can help you review your assets and explain your options when it comes to estate planning, and help you understand what types of wills or trusts are the best fit for you and your family.
If you have been named as an executor, or if you wish to contest the appointment of an executor, you will likely need to consult a local attorney who can help answer your questions and guide you through the complicated stages of the legal system.