Selecting an Executor for Your Estate

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 What is an Executor?

The executor of an estate is an individual who is named in the will of a deceased individual, known as a testator to represent the deceased individual’s estate. An executor has specific duties and responsibilities to manage and administer the decedent’s estate.

An executor has specific duties and responsibilities related to managing and administering the estate. An executor also helps ensure that the debts of the estate are paid and that the property of the estate is distributed according to the wishes of the testator.

An executor is responsible for ensuring that the testator’s interests and intent are protected and carried out in accordance with the terms of their will. Typically, the executor who is named in a will is a parent, child, or another relative of the testator.

In some cases, a testator may choose a close friend as their executor.

What Does an Executor Do?

One of the main duties of an executor is to make sure that creditors and debts which the testator had are paid off and any remaining property or money from the estate is distributed to the individuals who are named in the will as beneficiaries. Depending upon the nature of the estate, the duties of an executor may involve numerous duties, including:

  • Finding the assets of the testator;
  • Finding and contacting the beneficiaries of the will;
  • Ensuring that the will is filed in the appropriate probate court;
  • Opening a bank account for the estate;
  • Continuing necessary payments;
  • Paying off debts and creditors;
  • Paying final income taxes; and
  • Ensuring the distribution of the property of the estate.

An executor is required to manage the testator’s assets and keep them safe until they can be distributed to the beneficiaries. The executor’s duties may also include ensuring that the accounting of the assets is true and accurate as well as deciding what assets to sell and which to keep if it is necessary to obtain additional funds to pay taxes or creditors.

Because an executor is required to manage and protect the estate assets, it is important to keep the estate funds separate from any of the executor’s personal funds. Having a separate bank account in the name of the estate will also make the process of paying taxes and creditors easier.

There are also some recurring payments, such as mortgage or insurance payments which will have to be made during the administration of the estate. A bank account in the name of the estate can help ensure these payments remain up to date.

In general, before any property in an estate can be distributed to the beneficiaries, the executor must ensure that the debts of the estate have been paid. This means that the executor must send notice of the testator’s death to the creditors of the estate to determine how they want to proceed.

Although it may be surprising, individuals are required to pay income taxes after they die, one last time. The executor is responsible for ensuring that the income taxes of the testator are paid in full for the last year of their life.

Typically, the will of the testator includes specific instructions on who should receive which pieces of property and how to distribute the assets of the testator. It is the responsibility of the executor to ensure the beneficiaries receive what they are supposed to under the will.

If an individual dies without a will, or intestate, their property will be distributed based on the state laws governing intestate succession. In these cases, an executor is not appointed. Instead, the individual who handles the process in cases of intestate succession is typically called an administrator.

Who Can be an Executor?

An executor is not required to be a legal or financial expert. In some states, there may be requirements or prohibitions for executors, such as having reached the age of majority.

However, an individual who is drafting their will has the complete freedom to choose who will be the executor of their estate. In many cases, unless it is clear that the proposed executor is mentally incompetent or presents a clear threat to the estate, deference is given to the individual who is named in the will.

It is important for a testator to select a qualified and responsible individual as their executor because it will make the probate process smoother and ensure that the testator’s wishes are carried out properly as well as assist in preventing difficulties or burdens on the testator’s heirs.

Does an Executor Get Paid?

The majority of appointed executors will perform their duties out of respect for the testator’s final wishes and do not consider being paid for their services. An executor, however, does have a right to be paid for performing their duties.

Every state has specific rules regarding paying executors. It is often based on factors such as the value of the estate and the probate court’s determination of the reasonable value of the executor’s services and time.

How Do I Choose the Right Executor?

Naming the right executor for an estate is a very important choice. Depending upon the requirements of an estate, the responsibilities of an executor can quickly become time-consuming and complex.

Important factors a testator should consider when choosing an executor may include:

  • Trustworthiness;
  • An ability to take on challenges;
  • An awareness of the likely duties which will be involved; and
  • The willingness to take on the responsibility.

Does the Person Named Executor Have to Accept the Duty?

No, the individual who is named as the executor is not required to accept the duty. An individual who agrees to become the executor may also resign at any time.

If the will names an alternate executor, that individual can then take over the duties. If, however, the will does not name an alternate executor, the court will be required to appoint another individual to fill the role.

Can I Contest Who Was Appointed Executor if I am an Heir?

An heir under a will has the right to contest an executor appointment. Interested parties to a will, such as individuals who stand to inherit property, may initiate court proceedings to disqualify an executor for many reasons, including:

  • Mental incompetence;
  • Inability; or
  • Mismanagement.

If an executor is removed from their position, the court will likely appoint a replacement executor if the will does not name an alternate.

Do I Need an Attorney for Help with Executor Selection Issues?

Although you are not required to consult with an attorney to decide who they appoint as an executor, it is always in your best interest to consult with an inheritance attorney for any estate planning issues, questions, or concerns you may have. Your attorney can review your assets and explain your estate planning options, which may include what types of trusts are the best fit for you and your family and how to structure your will.

Your attorney can also provide assistance if you have been named as an executor in another individual’s will or you wish to contest the appointment of an executor. Your attorney can represent you in court and guide you through the legal system.

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