Estate administration refers to the legal process of locating, maintaining, and distributing someone’s assets after they die. A person’s assets or estate can include personal property and intellectual property. The person who has died is referred to as the “decedent” in probate terminology; their property, both real and personal, is referred to as their “estate.” At the conclusion of the estate administration process, the assets in the estate are distributed according to the testamentary will of the decedent.
If a person does not have a valid will when they die, their estate still must be located and maintained, and other tasks must be addressed just as for a decedent who has a will. However, the estate is distributed according to the laws of intestacy for the state in which they lived, as intestacy laws vary from state to state. These laws dictate how the estate belonging to a person who dies without a will, or who dies “intestate,” is to be distributed.
Estate administration occurs under the supervision of a probate court, which is a court that specializes in the process of probating estates. Probate is the legal process in which the court:
- Supervises the location and collection of a decedent’s assets;
- Ensures that creditors are paid; and
- Ensures that assets are distributed to the appropriate beneficiaries, either according to the decedent’s will or to the state’s intestacy laws.
Most states maintain a branch of their court system known as “probate court.” However, it may also be called “Surrogate’s Court,” “Orphan’s Court,” or “Chancery Court.”
What Is An Executor? What Does An Executor Do?
An executor is the person who has been appointed or entrusted with the task of managing and overseeing a decedent’s estate. To reiterate, the belongings and assets that remain are part of the estate, and they must be legally distributed according to the terms of either a will or state laws. In cases in which the decedent has a will in place, the person who is responsible for managing the affairs of the estate is known as the executor. The executor generally assumes their role after the estate holder dies.
Managing an estate requires attention to detail, as well as honesty. When selecting an executor for your estate, you should choose someone trustworthy as well as capable of handling a wide variety of tasks. The executor should be someone who is capable of managing property and bank account assets, as well as the possible distribution of those assets. Selecting an executor will be further discussed later on.
The various duties of the executor should be specifically listed in an estate planning document. However, the most important duties include ensuring that debts or creditors are paid off and that the remaining property of the estate is distributed appropriately.
Some other examples of common duties that the executor addresses can include:
- Overseeing the decedent’s property and assets after death, which can also include maintaining the condition of certain property until it can be distributed;
- Notifying all banks, credit card companies, and government agencies of the estate owner’s death;
- Ensuring that the decedent’s will is filed in the appropriate probate court;
- Addressing outstanding debts and property taxes;
- Paying final income taxes;
- Filing a complete inventory of the estate’s assets with the court;
- Addressing issues and concerns that the beneficiaries of the estate may have;
- Creating an estate account, which is used during the process of managing the estate property; and
- Representing the estate in court for all legal issues, including any estate disputes.
Depending on how the estate documents are drafted, the executor’s responsibilities may be considerably broad, or they may be limited. Regardless of how broad the scope of the executor’s duties, it is imperative to keep accurate records of all actions that are taken for the benefit of the estate.
Additionally, the executor will need to create an accounting of the estate, which should include any distributions and expenses as well as any income that is earned by the estate. If an issue is too technical for the executor, or is otherwise beyond their capabilities, they may wish to consult an accountant or a lawyer for help.
How Do I Select An Executor?
Some states may have specific requirements or prohibitions for executors, such as having reached the age of adulthood. However, the person drafting the will generally has complete freedom in choosing who will be executor of the estate. 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.
Although an executor is not required to be a beneficiary under the will, many people select one of their beneficiaries as the executor.
Most executors perform their 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 legal right to be paid for performing their duties.
Some examples of important factors to consider in an executor are:
- An ability to take on challenges;
- An awareness of the general duties involved; and
- The willingness to undertake the responsibility.
How Are Disputes With An Executor Handled? Can An Executor Be Removed?
Disputes between executors and beneficiaries of the estate commonly arise when the executor does not carry out their duties efficiently or properly. Disputes can also occur if the beneficiaries feel that the executor is not managing the estate properly or when the beneficiaries do not agree with the executor’s decisions regarding the estate. Another example of a dispute would be how the executor interprets specific provisions of the will.
Disagreements may require the court to intervene. Under such circumstances, the court will review the will and other estate documents, which should carefully outline the executor’s duties and responsibilities. These documents should also detail the scope of their authority. The court will also review the executor’s actions when compared to what is set forth in the estate documents, and either clarify or provide direction in terms of how to proceed.
An example of this would be how the court may give specific instructions regarding the distribution of a specific item or items, if those items are the source of the dispute.
In especially serious circumstances, such as if the executor is willfully behaving against the best interests of the estate, interested parties to an estate can petition the court to remove the executor from their position. The court will generally remove an executor who is dishonest or seriously incompetent. While each state has its own rules regarding what reasons are considered to be sufficient for removal, courts will remove an executor who:
- Does not fulfill their duties;
- Uses estate funds for personal use; or
- Has a conflict of interest that would interfere with the administration of the estate.
Do I Need An Attorney For Issues With An Executor?
If you are experiencing issues associated with an estate executor, you should consult with an experienced and local estate lawyer.
An area attorney will be best suited to help you understand your legal rights and options according to your state’s specific estate administration laws. An attorney will also be able to represent you in court, as needed, should any disputes arise.