Key Takeaways
- The executor of a will plays a crucial role in settling the deceased person’s affairs and managing their assets after their passing.
- Responsibilities associated with settling an individual’s estate range from making funeral arrangements to settling creditor debts and distributing assets to beneficiaries.
- An executor’s responsibilities begin immediately following an individual’s death and carry on throughout the management of property until assets are distributed to beneficiaries.
- An estate administration attorney is a beneficial resource for helping an executor understand the full scope of their duties.
Introduction
After a person passes away, their property must be distributed to someone, but without someone to guide that process and ensure it moves forward. The executor of a will plays an essential role in ensuring these steps proceed smoothly, with the responsibility of protecting assets during probate so they can be distributed to the appropriate beneficiaries or relatives according to the instructions left in a will.
With the many tasks necessary to settle an estate, it can be challenging to keep track of the complete list of executor duties and responsibilities. This guide simplifies the process, outlining the powers of an executor of a will and clarifying the procedures they must follow to carry out their duties from start to finish.
What Is an Executor of a Will?
An executor of a will is an individual identified in a will to fulfill the responsibility of administering estate assets and distributing estate property to a deceased individual’s beneficiaries. This role encompasses several other duties along the way, including managing property, paying estate expenses, and maintaining consistent communication with beneficiaries.
However, the key responsibility of an executor is to closely follow the instructions described in the decedent’s will. The decedent chooses a trusted individual for the sake of ensuring their estate is managed responsibly, and the executor has a fiduciary duty to act in the best interests of the estate and the decedent throughout every step.
Why Is the Executor of a Will Important?
The executor of a will bears the responsibility for ensuring that a deceased person’s affairs are settled appropriately after their death. An executor has the important job of carrying out the decedent’s wishes after they pass, including ensuring assets are distributed according to their identified beneficiaries.
The executor keeps the probate process on track and “executes” the plan left by the deceased according to the instructions of the will and their obligations under state law. Without an executor, a person’s affairs could exist in limbo without clear direction for who should resolve them until the court steps in.
Duties of the Executor of a Will
The executor of a will has several responsibilities that begin shortly after the decedent passes away and last until all of the estate’s assets have been distributed.
Phase 1: Immediate Post-Death Responsibilities
Immediately after an individual’s death, the person named as executor in that individual’s will should begin a process that leads to the administration of the estate, involving the steps below.
1. Securing the Will and Essential Documents
The person named as an estate’s executor should prioritize obtaining the will, which provides essential instructions for administering the estate, as soon as possible following the decedent’s death. If you are unsure where the will is located, consult the decedent’s family members, financial advisor, or estate planning attorney, who may be able to help. Look through the decedent’s office, important files, and their safe deposit box. You may also be able to engage the support of a probate and estate administration attorney for support in tracking it down.
Other important documents include:
- Legal documents – Search for important legal documents, including the last will and testament, the death certificate, and trust documents, if applicable.
- Financial statements – Compile readily available statements for bank accounts, investment accounts, retirement accounts, and real estate documents.
- Insurance policies – Gather policy documents for any insurance policies held by the decedent, such as life or property insurance, and take note of beneficiaries.
- Legal and personal records – Records like marriage and divorce certificates, birth certificates, and social security cards will be valuable for tax and estate management purposes.
2. Obtaining Death Certificates: Why Multiple Copies Are Needed
Obtain several copies of certified death certificates from the coroner’s office, funeral director, medical examiner, or the state agency responsible for maintaining those records, such as the department of vital statistics. Be sure to obtain multiple copies, as they will be beneficial for handling various affairs, such as filing taxes, filing life insurance claims, accessing bank and investment accounts, and notifying the Social Security Administration of the person’s death.
3. Funeral Planning and Making Arrangements
Sometimes, wishes and instructions for the funeral will be included in the decedent’s will. The executor may be the only person with the knowledge of how to communicate with the funeral home and make necessary arrangements, from scheduling the service to sending invitations. This step will often involve close communication with family members involved in the planning to coordinate.
Phase 2: Legal and Administrative Foundations
After addressing the urgent steps in the weeks immediately following the decedent’s passing, you may begin to navigate the legal steps of entering probate and administering the will.
1. File the Will with the Probate Court
Filing the will with the probate court is essential for being approved as the executor of the will and formally initiating the probate process. You should send the “Notice of Petition to Administer Estate” to beneficiaries named in the will and legal heirs of the decedent, such as a surviving spouse and children, who would be entitled to an inheritance according to state law if there were no valid will. A copy must be delivered at least 15 days prior to the hearing to appoint the executor through first-class mail or personal delivery.
After securing the will, you should be sure to review the instructions left in the will so that you fully understand the decedent’s intentions and wishes regarding estate assets. It’s advisable to review the will for any potential signs of fraud, forgery, or wrongful influence to ensure the document accurately reflects the decedent’s wishes.
As an executor, you should also be prepared for potential challenges to the will. Challenges can arise from issues such as undue influence, areas of ambiguity in the document’s language, or disagreements over the share of an inheritance among beneficiaries.
2. Obtain Letters Testamentary (or Grant of Probate/Letters of Administration)
Upon the probate court’s validation of the will, it will issue letters testamentary, which serve as legal documentation granting the executor the authority to begin the estate administration process. Not only do letters testamentary signify the beginning of the probate process, but they also serve as crucial proof of the executor’s authority to important stakeholders, which allows you to carry out essential duties during the probate process. Be sure to make copies of these documents upon receipt.
3. Secure an EIN (Employer Identification Number) for the Estate
An Employer Identification Number is a number provided by the IRS to consider the estate as its own taxable, financial entity. This number will be necessary for key steps like filing tax returns, opening a dedicated estate bank account, and managing financial assets like investments or real property. You can apply for an EIN online at IRS.gov or send Form SS-4 directly to the IRS via mail or fax.
4. Open an Estate Bank Account
Opening an estate account is one of the most important steps included in what an executor can do, as it is crucial to separate estate and personal assets. You should use this account for any and all financial assets belonging to the estate and all transactions. Payments like burial expenses, tax filings, and creditor debt payments should happen through this account.
5. Notify Government Agencies (Social Security Administration, VA, etc.)
If the decedent was receiving social security, Medicare, or Department of Veterans Affairs benefits, then the executor should notify the agencies of their death with a copy of the death certificate. Any payouts from the agencies will be halted, but some surviving family members, like spouses, children, or dependent parents, may be eligible for monthly survivor benefits.
6. Notification of Other Key Institutions
Provide notification to all institutions affiliated with the decedent of their passing so that those institutions can address the decedent’s necessary affairs through you, the court-appointed executor. Important institutions to notify include:
- The decedent’s employer
- Any employees
- Their doctor
- Landlord or tenants
- Utility companies
- Insurance agents
- The post office for mail forwarding
Some institutions may require an original copy of the death certificate, making it helpful to have several copies on hand.
7. Protecting Estate Assets from Theft or Damage
An executor is responsible for marshaling and inventorying all assets. Once they have a clear view of all the assets belonging to the estate, the executor can then begin to categorize assets into debts, liabilities, and positive assets. Then, they should secure and protect all property from theft, damage, or misappropriation of assets that would be against the estate’s interests and the testator’s wishes.
Protecting estate assets involves securing and insuring estate real property, transferring liquid assets into a separate estate account, and safeguarding valuable personal property, like jewelry and artwork. Review the will to determine all of the estate assets included so you have a clear overview of which assets you are responsible for managing.
Phase 3: Inventory, Valuation, and Management of Estate Assets
The estate executor must compile all estate assets and ensure they are maintained in good hands while settling affairs until they can distribute assets.
1. Marshal and Inventory All Estate Assets
An executor has the primary responsibility of identifying and locating all of the deceased person’s assets, regardless of whether those assets are specifically mentioned in the will. Most wills have a residuary clause that distributes “the rest of my property” to named beneficiaries. During this process, you should account for all property that belonged to the will creator at the time of their death, from real estate property to personal possessions, like jewelry, artwork, and other valuables. Be sure to compile important documents, such as bank account statements, investment account statements, real estate deeds, and vehicle titles. Notably, this duty extends only to probate assets distributed under a decedent’s will. The executor has no powers or duties related to nonprobate assets such as investment accounts with specifically named payable-on-death beneficiaries.
Upon inventorying assets, the executor should continue to ensure that all property is protected from theft or mismanagement, which may include keeping personal property in a safe location or transferring liquid assets into the estate account. If the value of any physical personal property may be disputed by beneficiaries, you should engage a professional appraiser to determine that property’s fair market value. This will help ensure a fair distribution to all beneficiaries.
2. Identify Joint Accounts and Beneficiary Designations (Non-Probate Assets)
Not all assets must pass through probate to transfer to beneficiaries. The executor is responsible for the administration, protection, and distribution of probate assets. Conversely, certain assets count as “non-probate assets” that can be passed directly to beneficiaries without the need for probate or an executor. Non-probate assets often include assets owned jointly by multiple people, retirement funds, insurance policies, or bank accounts payable-on-death beneficiaries, or assets held in a trust. Verify whether property is considered probate or non-probate assets by reviewing titles and deeds for individuals listed as having joint ownership with rights of survivorship.
Phase 4: Settling Debts, Paying Expenses, and Distributing Assets
The final steps of settling an estate involve paying expenses and settling debts before ultimately distributing assets to identified beneficiaries.
1. Identify and Verify All Estate Debts and Liabilities
The executor must settle all valid estate debts and liabilities that were outstanding against the decedent during their lifetime. Executors may wish to pay creditors upfront and voluntarily if they are aware that the debt is outstanding and valid.
Still, an executor is legally obligated to notify creditors of the probate process so they can submit a claim for repayment. The timeline for creditors to submit a claim will depend on the governing state law. In California, creditors have 90 days to submit their claims. In Texas, the claims process involves publishing a general notice to all creditors, notifying all secured creditors, and specifically notifying unsecured creditors, who will have 120 days to submit a claim on receipt of that notice. You will then be responsible for reviewing these claims, assessing their validity, and making the necessary payments.
2. Pay Bills, Debts, and Ongoing Expenses
An estate is still liable for taxes, bills, and any debts that become due during the course of administering the estate. The executor is responsible for managing these expenses so they can preserve the estate’s value before transferring the remaining assets to beneficiaries. For example, the executor may incur expenses from hiring professionals like lawyers and accountants to assist with estate administration.
Some common ongoing bills, debts, and expenses to consider include:
- Estate taxes
- Property taxes
- Property mortgages
- Real property and auto insurance
- Personal loans
- Utility costs for sustaining properties
- Required maintenance for any properties
3. Distribute Assets to Beneficiaries
Finally, once all valid estate debts and expenses have been settled, the executor can distribute the estate assets according to the terms of the decedent’s will. Depending on your state and the type of administration, you may need to petition the court for approval to distribute those assets, which may involve submittinga final accounting to the court that outlines all transactions that have been conducted during the administration of the estate and the final payouts for creditors and beneficiaries.
4. Finalize Estate Closure With The Probate Court
Once all of your tasks have been completed, you can begin the legal processes for officially closing an estate. This may involve filing a petition for final discharge and order. As part of this petition, you will need to include a final accounting, which should include a detailed breakdown of income, expenses, and asset distributions. To expedite the process of preparing this final petition, beneficiaries may elect to waive a detailed accounting. Your state may allow alternate legal procedures for closing an estate, including less formal procedures that do not require accountings.
After complying with your state’s procedures on estate closure, you will officially be discharged from your duties as an estate executor.
Navigate Your Executor Duties With RMO Lawyers
An estate executor must carry out several responsibilities to fulfill their duty of ensuring the responsible administration of an estate. These duties include reviewing the will, protecting estate assets, managing estate finances, distributing assets to beneficiaries, and more. With the long list of tasks an executor must fulfill, the guidance of an estate administration attorney can be a valuable resource for ensuring an executor understands their duties.
If any disputes arise throughout the process, the probate attorneys at RMO may be able to help. With decades of experience in supporting executors and navigating conflicts during estate administration, we will work diligently to understand the unique family circumstances and seek a resolution to the conflict as soon as possible.
Schedule a consultation with the attorneys at RMO to discuss your case and explore your options for moving forward.
Frequently Asked Questions
The executor of a will ensures that a person’s affairs are settled after they pass away, including managing property, paying debts and expenses, and distributing property to beneficiaries identified in a will. It is the executor’s responsibility to closely follow the instructions outlined in the document as they safeguard the decedent’s assets, manage expenses, and transfer ownership of assets to the appropriate beneficiaries.
Requirements to be an executor may vary by state, but typically, you must be of sound mind, be over the age of 18, and not have a previous felony conviction. Depending on your state, a prior felony conviction may or may not disqualify you as a potential executor. In some cases, an executor may be required to procure a bond, which provides additional security to beneficiaries and creditors that the executor will fulfill their duties responsibly.
Common downsides of being an executor include the time commitment required to carry out the administration of the estate, having to navigate unfamiliar territory and complex legal procedures, responding to beneficiary demands, and the risk of personal liability if you make mistakes. The support of an estate administration attorney can help with clarifying necessary responsibilities.
Common executor mistakes include failing to communicate with beneficiaries, failing to maintain accurate records of estate transactions, mismanaging or failing to secure assets, and failing to consult professionals like attorneys or financial advisors for guidance. It’s often advisable to consult an estate administration attorney who can help clarify an executor’s responsibilities and offer legal guidance to minimize the likelihood of mistakes.
Yes, an executor can withdraw money from a deceased person’s bank account as long as they follow the necessary procedures for doing so. An executor will likely need to provide the decedent’s certified death certificate, their own personal identification, and letters testamentary demonstrating their authority as an executor to the bank while meeting any other specific bank requirements. For example, many banks require that the executor set up a separate estate account and withdraw money from the new estate account rather than directly from the decedent’s account.
Glossary
Estate Executor – An individual appointed by a probate court who is responsible for managing and administering an estate and is named as executor in the deceased’s will.
Estate Administrator – An individual appointed by a probate court to manage and administer an estate when there is either no will naming an executor, or the named executor is deceased or otherwise cannot serve, including because they are disqualified or were suspended or removed.
Letters Testamentary – Documents issued to an executor by a probate court that authorizes an executor or administrator to begin the estate administration process, either by following the will or state intestacy laws.
Personal Representative – An overarching term for a person appointed by a probate court to administer an estate, encompassing the role of executors, administrators, and temporary or special administrators.
Probate – The court process in which a will is declared valid, a personal representative is appointed, and the assets of an estate are gathered, accounted for, and distributed to the heirs or beneficiaries after an individual passes away, either in accordance with the deceased’s wishes (if they had a will) or following local intestacy laws if there was no will.