The executor is the person you name to settle your will according to your directions. Your executor is entitled to a fee for their role in closing out your estate, but are not entitled to proceeds from the sale of the property of your estate. Many states mandate this fee and some states even govern what the executor is paid based on the size of the estate.
Choosing an Executor
Most married couples choose their spouse, but it is also common to name an adult child, parent, sibling, or capable friend. You may even prefer to choose a professional, such as a lawyer, accountant, bank, or trust company, but this is more expensive up front.
Before you start you need to know that there are some restrictions on your choice of executor.
- They have to be more than 18 years old (19 in some states)
- Only U.S. residents are eligible
- They cannot have been judged incapacitated and/or unable to handle your estate by a court.
- They should not have been convicted of a felony, although some states are less strict than others.
- Many states only allow residents of the same state to serve.
- Choose an executor who will perform their responsibilities in good faith, a legal concept known as “fiduciary duty.”
- It is best if they have good financial management skills, or be willing to consult someone who does.
- You should talk to this person about their willingness to take responsibility before officially naming them as executor.
- Your chosen executor can decline the position or resign at any time
- Choose an alternate executor in the event that your:
- spouse is your executor and you divorce
- first choice resigns or something happens to them
- executor become unwilling or unable to perform their duties upon your death
Your executor may be more comfortable if they consult an attorney to help them with the process. The attorney can also assure that they properly comply with their duties.
Tasks of an Executor
While it may be an honor to be chosen, it is also a significant obligation, so you should be aware of what you are getting the executor into. An executor must handle all the debts, loose ends, instructions in the will, and more that come with an estate. With this much responsibility, may refuse the honor if they do not feel able to manage it or are not interested.
If accepted, their job as executor may be easy or challenging to carry out, depending on the size and complexity of the estate.
With few exceptions, the probate court supervises the executor while the will is being settled to ensure that your wishes specified in the will are carried out in good faith and with the utmost honesty and diligence.
Here are the basic tasks the executor is legally responsible for. The order in which they are done is very logical and depends on certain tasks needing to be done before you can proceed to the next and how quickly they need to be done.
Their first task is locating, reading, and understanding the will, including any codicils (addenda or additions) to know how they are to proceed. This is best if they have done this prior to your death.
Want to learn more? Read on.
- This prior knowledge is key, since they may be required to immediately notify certain people, based on specific instructions in the will.
- The executor will need to know who will arrange the funeral and burial and how to find them.
- They may also need to arrange emergency care and guardianship for minor children, dependent, and pets, according to the will.
Once the funeral and burial is done it is time to prepare for probate. There are many steps to get ready.
Want to learn more? Read on.
- Find all personal property and other assets in the estate.
- Finding and contacting all the benefactors/heirs, usually includes a Notice to Heirs.
- Obtain a Letter of Testamentary.
- This is the legal document issued by probate court that gives them the power to act in a fiduciary manner on behalf of the estate.
- To get one, they need to file the will and the death certificate in the probate court, along with forms asking for the letter of testamentary. They also give the court their information, documentation of their identity, some basic information about the value of the estate, and the date of death.
- The court schedules a hearing to verify the information and assure that they meet state qualifications and are capable of performing the tasks. After several weeks to several months they will be issued a letter of testamentary.
- They can then present the letter of testamentary to show that they have the legal authority to act on the estate’s behalf, along with the death certificate when handling estate business.
- Executors appointed by the court when there is no will need to apply for a Letter of Administration.
Next decide what kind of probate is needed and proceed by:
Want to learn more? Read on.
- filing a copy of the will to be validated by the probate court in the county where you owned property. Inheritance laws may make it easy to transfer certain properties without probate (such as property held jointly by a husband and wife), but the will still needs to be filed even if an appearance in probate court is not needed.
- submitting a detailed inventory of the estate’s assets, if required in your state, including items of personal property without title documents, such as furniture and appliances, clothing, household goods, and other personal items.
- hiring a probate lawyer to assist in some of these tasks, if necessary. The attorney will be paid from the estates assets.
If a probate court is required to settle the estate, as with most wills, they will need to:
Want to learn more? Read on.
- obtain a death certificate
- file a petition with the court to be appointed an executor
- If approved, the court will issue letters of office or letters of authority, which they will need, along with the death certificate, for future actions on behalf of the estate.This is needed to unfreeze the estate and allow them to manage it.
- You will likely need an attorney’s assistance to accomplish this.
- inquire if the value of the estate allows an expedited or simplified process.
- represent the estate if required to appear in court on behalf of the estate.
Once the probate process has started they will begin to sort out the estate finances and arrange for payment of estate debts and expenses. Depending on the details of the estate, many specific duties may also be required.
Want to learn more? Read on.
- Collect and create an inventory of all personal property and assets in the estate and protect them until distribution determines who inherits the property.
- Transfer all securities to their name and continue to collect dividends and interest on behalf of the heirs.
- Locate and inventory all real estate deeds, mortgages, leases, and tax information.
- Provide immediate management for rental properties.
- Arrange ancillary administration for out-of-state property.
- Collect money owed you and check interests in estates of other deceased persons.
- Locate all household and personal effects and other personal property in order to inventory and protect them, including cash and other valuables that may be hidden around your home.
- Arrange for appraisal of items.
- Collect all life insurance proceeds payable to the estate.
- Work closely and coordinate with the Trustee of any trusts, if it is not them.
Notify banks, credit card companies, government agencies, utility companies, lawyers, brokers, landlord/tenants, insurance agents, doctors, Social Security Administration, VA, employer or employees, etc. of their death. See Information for Families
Want to learn more? Read on.
- Cancel any credit cards that are still open.
- Discontinue leases on rental property no longer needed.
- Redirect or forward mail and other correspondence.
- Discontinue any other unneeded services, such as health insurance, phone service, cable/internet.
- Stop all subscriptions (paper and web-based)
Set up an Estate Account
Want to learn more? Read on.
- This will include a bank account for incoming funds, such as incoming paychecks, retirement settlements, or other money that is owed to you.
- They will use this to pay current bills, such as mortgages, utilities, homeowners insurance, etc. that will need to be paid throughout the probate process.
- Disputes between beneficiaries regarding the estate account need to be initially handled by them.
Maintain the property until it can be distributed to the beneficiaries or sold.
Want to learn more? Read on.
- This includes keeping up a house or other properties that require upkeep.
- Deciding whether the property needs to be sold to pay debts.
- Locate and secure any safety deposit boxes.
Settle the estate’s debts and taxes. Make sure they retain and prepare a statement of all receipts and disbursements.
Want to learn more? Read on.
Notify creditors according to state procedures. For known creditors they may send a Notice to the Creditor of Death form. For some it may require an advertisement, or Notice to Creditors, in the local newspaper, to file a claim against the estate within a certain amount of time, usually determined by your state.Validate claims by creditors and pay any legitimate ones.File income tax returns from the first of the current year until the date of your death.
Once this is done, they may need to petition the court for the authority to perform specific tasks indicated in the will, unless your beneficiaries waive the requirement, as allowed under some state laws.
Want to learn more? Read on.
This petition may include an accounting of how the assets were managed during the probate process.
Once the petition is granted, they may:
- draw up new deeds or legal title for property, transfer stock, liquidate assets and begin distribution of the remaining assets according to the wishes expressed in your will
- transfer money to the trustee if the will created a trust for the benefit of a minor, spouse or incapacitated family member
- dispose of any remaining property
Once they have completed all these tasks, they will apply to the probate court for an official
Go to Executor Duties Checklist for a downloadable PDF to help with the process.