Duties of an Executor of a Will
One of the tasks of creating a last will & testament as part of your end-of-life plan is that the testator (you, the creator) names an executor. As noted by Keystone Law Group P.C. in a blog post titled Who is the Executor of a Will, “…the court will give the person whom the decedent nominated through their will priority to serve in the role.” The duty of the executor is to make sure that all the wishes of the testator are carried out properly when the testator dies. Depending on what state you live in, the complexity of the estate, and/or how organized the deceased was, the job of an executor can be quick and easy or time-consuming and difficult. This should be a factor when considering whom you ask to play that role.
It’s beneficial to identify the duties of an executor to help you identify the correct person for your estate. Keep in mind that it may be helpful for an executor to hire an attorney (using estate funds) to assist with some of these duties, particularly those that involve probate court. Their expertise may save a great deal of time and frustration in carrying out a will's instructions.
Find the will and understand it – There is no point in creating a will if nobody knows where it is and how to access it after you’ve died. It is the testator’s job (not the attorney’s) to keep it secure and to communicate its whereabouts with the right people. One of those people should be the executor. In an ideal world, you will have created your will long before you’re knocking on death’s door (see Top Five Reason to Get Your Affairs in Order NOW!) and you’ll have spoken with the executor to explain its contents and where you will keep it. The executor must understand your desires and wishes to carry them out correctly.
File the will with the probate court and, if necessary, petition for probate – Probate court confirms the veracity of the will and authorizes the executor to pay the estate’s debts, distribute assets to the beneficiaries, etc.
Accept the fiduciary duty – The executor of the will must commit to carrying out the directions of the will and any changes mandated by the probate court. The executor cannot use this role for personal gain and has no authority to distribute assets differently than directed.
Appear in probate court as needed – The executor may need to be present in the initial hearing to be officially named as executor, especially if the role as executor is contested by another. The executor may also be needed in court if any disputes arise through litigation by family members or other beneficiaries (see Legal Preparation for Your People to read more about family infighting), or if others feel that the executor is not living up to his or her fiduciary duty.
Notify appropriate individuals and organizations of the death – In addition to connecting with those impacted by the will, this responsibility also ensures that all accounts are closed appropriately, and that no individual or organization may fraudulently gain or suffer losses due to the death. Those whom the executor may need to connect include family and friends of the deceased, heirs of the estate, beneficiaries of life insurance policies, creditors, the social security administration, utility companies, subscription services, retirement plans, financial managers, department of motor vehicles, the post office, credit bureaus, etc. Depending on the executor’s relationship to the deceased and the relationship of the survivors of the deceased, many of these contacts may be made by others.
Identify, maintain, and secure assets – An executor will need to list all the assets of the deceased, protect them from those seeking to take advantage, and in some cases, like a home, maintain them until the asset is legally transferred to the heir.
Pay debtors and taxes – While beneficiaries of the estate are not responsible for debt incurred by the deceased (unless they are listed as co-signers of the debt), the debts will need to be paid by the estate as part of its settlement before assets are distributed to the heirs. This includes any taxes owed by the deceased from years past and from January 1st until the day of death in the year the deceased dies. As a result, the executor will need to make sure that a tax return is filed appropriately on behalf of the deceased at the appropriate time.
Open an estate bank account – Having a dedicated bank account into which any incoming revenue due the deceased may be deposited and from which the executor can pay appropriate expenses related to the estate is a good idea. Transferring funds from other accounts into this one centralized account can make it easier to track all the deceased finances while the estate gets settled. It also facilitates full transparency of estate funds and allows the executor to avoid mixing personal business in with estate business.
Distribute assets – After all debts have been paid and the estate is settled, the executor is free to distribute the remaining assets as dictated by the will.
ACTION ITEM:If you already have a will in place, contact the executor and backup executor to review its contents and remind them where to find the will in the event something happens to you.
If you are in the process of creating a will, compare this list of duties with the skills, abilities, and available time of your top candidates for executor. Talk with them about these responsibilities and whether they’d be willing to accept them should something happen to you.
Given all of the responsibilities required for an executor to carry out your wishes, consider budgeting money from your estate to pay the executor for his or her time.
