Executive Summary
- An executor is an individual appointed by a deceased individual to manage an estate and administer its assets in line with the terms described in a will.
- Important duties for an executor include reviewing a will, inventorying estate assets, managing estate taxes, distributing assets to beneficiaries, and more.
- An executor must prepare for contingencies like will contests or disputes between beneficiaries.
- An executor can seek the support of an estate planning attorney for guidance in understanding their legal obligations and navigating the appropriate processes.
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 no will naming an executor, the named executor is deceased or otherwise cannot serve, including because they are disqualified or were suspended or removed.
Personal representative – An overarching term for a person who is responsible for administering an estate, encompassing the role of executors, administrators, and trustees.
Probate – The court process in which 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.
Introduction
An estate executor is a valuable part of the estate administration process and has no small role in overseeing the distribution of assets. The executor has several responsibilities they must carry out to ensure the well-being of the estate.
An executor is often confused with a trustee or estate administrator. Although they have similar responsibilities, a trustee and executor are different. An executor serves the role of administering an estate when a deceased individual leaves a will, while a trustee oversees the administration of a trust.
An executor is also different from an administrator—both are responsible for overseeing the administration of an estate, but an administrator is appointed by the court when no executor is named in the will or no will exists.
If you have been named as an executor, there are several functions you may need to undertake. Understanding these duties is essential for proper management of the estate and appropriately fulfilling the wishes of the deceased—this executor duties checklist can help.
Understanding the Executor’s Role
An executor is appointed by a deceased person’s will to manage a deceased person’s estate. The executor is a crucial part of the estate administration process, overseeing the process from start to finish and ensuring that the wishes of the deceased are upheld.
Being named the executor of a will brings with it a wide variety of important duties that must be carried out to meet the wishes of the decedent. The duties of an executor are outlined by state law—these include responsibilities from understanding the will and gathering all necessary assets all the way through the distribution of these assets to the named beneficiaries.
An executor is granted authority by the creator of a will and the court. In their role, the executor has a fiduciary duty to act in the best interests of the estate and the deceased individual. This fiduciary duty umbrella includes the following responsibilities:
- Maintaining communication with all beneficiaries and interested parties
- Closely following the terms of the will and estate planning documents
- Responsibly managing all property and financial assets
- Making sound and responsible investment decisions using estate assets
Initial Steps Upon Appointment
When first appointed as an executor, you will have to take a few initial steps to accept the role and begin the administration process. In the stages after the initial appointment, you should consider the following steps.
Notification and acceptance of executorship role
After the court validates the will, it will officially appoint the executor named in the will to begin the probate process. If there is no executor named in the will or no will at all, the court will appoint an administrator to oversee probate, often a close family member or public administrator.
Although an executor is named in a will, they do have the right to refuse their appointment or resign at any time. If you refuse the appointment, then you will need to officially decline your role so that the court can appoint an alternative executor.
If you do accept the appointment and plan to administer the estate, you will be responsible for notifying all interested parties related to the estate of your appointment, including beneficiaries, legal heirs, and close relatives.
Notify all other appropriate parties
This will include making sure creditors know about the death, making arrangements to appear before the probate court, sending official death notices to all relevant parties, soliciting creditor claims to determine what debts the estate owes, contacting Social Security and life insurance companies, and notifying the IRS. Depending on your situation, there may be other parties to contact as well.
Locate the will and important documents
Upon an individual’s passing, the executor has the responsibility to obtain the will and any other related estate planning documents. Many times this will be left with the family attorney or kept safely with important family papers, or may even be stored in a safety deposit box at a local bank.
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 all 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.
- Contact information of beneficiaries and key parties – Gather all contact information for family members and beneficiaries so you can notify them of the individual’s passing while also ensuring your contact information as the executor is readily available to all interested parties.
Retain an attorney
Not all estates require the assistance of a lawyer, but having one can smooth out any problems before they become larger or unmanageable for the executor. Consider consulting an estate & probate administration attorney once you are appointed to your role so that you have the necessary support and legal guidance.
An attorney can be a valuable resource not only when you experience issues or disputes in the administration process but also for support in understanding your legal obligations.
Identify and protect the deceased person’s assets
An executor is responsible for marshaling all the assets belonging to an estate and safeguarding them throughout the probate process. This may range from securing jewelry and other valuables to making payments on real estate and other tangibles, or whatever an individual situation may demand.
An executor should begin this process by conducting a thorough inventory of all the decedent’s assets. Once the executor has a complete list of assets and amounts, they can decide how to store and protect them.
Some strategies you can take to safeguard assets during probate include:
- Opening an estate bank account in the name of an estate or trust
- Developing a plan to complete estate property maintenance
- Completing a full inventory of assets and taking steps to put them in a safe location
Review and validate the will
You will need to make sure the will is, in fact, the deceased person’s final will. The will must be submitted to the court and validated by the judge as the true, legally outlined intentions of the decedent.
As the executor, you will need to review the terms of the will so that you fully understand the decedent’s intentions and wishes regarding estate assets. In reviewing the will, you should note all named beneficiaries, what share of assets they should receive, and when distributions should be made.
As an executor, you should also be prepared for potential challenges to the will. Challenges may arise over potential issues like undue influence, areas of ambiguity in the written aspects of the will, and disagreements surrounding the intended distributions to beneficiaries.
Interacting with Beneficiaries and Stakeholders
Executors are responsible for ensuring positive interactions with beneficiaries and maintaining transparency throughout the probate process. An executor should have strong communication skills and approach the process with empathy and compassion.
Maintaining effective communication strategies
Executors should ensure that all beneficiaries and stakeholders are informed about the probate process—this includes keeping them up to date on the progress of probate proceedings, any important transactions, and any expenses that require approval. The best way to ensure effective communication is to be proactive and communicate as often as possible to avoid leaving interested parties in the dark.
Effective communication strategies include:
- Sending a letter or email outlining the expected timelines for asset distribution
- Providing status updates about the probate process
- Reaching out to interested parties for input on decisions regarding real estate sales
- Distributing letters regarding the completion of any transactions, such as the sale of property or investment decisions
- Responding promptly to any beneficiary questions or concerns
It’s important to maintain a sense of empathy when communicating with beneficiaries and other stakeholders, recognizing that losing a loved one is a difficult experience regardless of the circumstances. Maintaining transparency, clarity, and patience while managing the estate goes a long way toward promoting a successful completion of probate.
Resolving conflicts among beneficiaries
Conflicts may arise between beneficiaries regarding the distribution of assets and the appropriate shares for these distributions, such as who should receive specific property and who should receive finances. It’s up to the executor to resolve these conflicts by navigating them with patience and empathy while making necessary decisions to uphold the intentions of the will’s creator.
Executors can utilize mediation strategies to lead negotiations between beneficiaries. Acting as a mediator, the executor can help to facilitate an agreement between beneficiaries that satisfies all parties.
For example, in a dispute over splitting property, the executor may resolve the dispute by promoting a compromise, recommending that one side receive the property while the other receives other assets of equal value. The executor can also use their authority to sell the property and split the proceeds equally between the parties.
If the beneficiaries are unable to reach an amicable resolution, it may be necessary for the executor to file a petition with the probate court, asking for instruction on how to resolve the dispute. The avoidance of the cost and delay of legal proceedings may add another point of leverage for the executor to informally resolve the parties’ disagreements before court intervention.
Handling Financial and Administrative Tasks
The executor is responsible for handling all administrative tasks surrounding the financial well-being of the estate. These tasks include protecting financial assets left to the estate, paying taxes that accrue, and paying ongoing expenses to avoid fees.
Open an estate bank account
An estate bank account is essentially a standard bank account, but for maintaining and transferring estate assets—it is highly beneficial for protecting these assets and reducing the risk of them falling into the wrong hands. An account also reduces the risk of beneficiaries accusing you of wrongdoing, such as self-dealing or mismanaging assets, as you will have a clear breakdown of all transactions surrounding the estate.
Steps to opening an estate bank account include:
- Begin the probate process by filing with the court
- Apply to the IRS for a tax identification number for the estate using Form SS-4
- Research banks near you that offer estate accounts and research the documents they require to open an account
- Gather documents like the asset inventory, existing account statements, and the court document naming you as the executor
- Open the account through the bank and transfer assets
Paying bills, debts, and ongoing expenses
An estate is still liable for taxes, bills, and any debts left behind by the decedent after their death. The executor is responsible for managing these expenses so they can preserve the estate’s value and well-being before transferring the remaining assets to beneficiaries.
Some common ongoing bills, debts, and expenses to consider include:
- Estate taxes
- Property taxes
- Property mortgages
- Personal loans
- Utility costs for sustaining properties
- Required maintenance for any properties
Qualifying for a Bond
Under California Probate Code §8480 and Texas Estates Code §305.001, the court may require that an executor or personal representative obtain a probate bond before beginning their responsibilities in the estate administration process. This bond acts as collateral in order to hold the executor accountable for performing their duties responsibly and prevent them from mismanaging estate funds.
You can select a surety company and fill out an application for a bond in the amount ordered by the court, typically determined by the value of the estate and its assets. In some cases, a will or its beneficiaries can waive this requirement.
It’s important that an executor is in good legal standing to be able to qualify for a bond from a surety company—this may require having a strong credit history, maintaining a clean criminal history, and being a registered citizen of the United States. If a personal representative is unable to obtain this bond, then the court may remove them from their position and appoint an alternative representative.
Managing Tax Obligations
After an individual passes, their estate will still have required taxes in line with state and federal law. An executor is responsible for managing these tax obligations and ensuring that the estate remains in compliance with all tax responsibilities.
Understanding estate taxes and liabilities
Tax obligations can vary by state and require adjustments based on the type of estate. The most common taxes to consider include estate, property, and inheritance taxes.
In Texas, fortunately for beneficiaries, there is no estate or inheritance tax. However, some estates may be subject to a federal inheritance tax. Estates that surpass a value of $13.61 million or more will owe an inheritance tax for any value above that threshold.
Texas estates are subject to property taxes, though. Executors will have to be aware of addressing this annually if the estate does include property. Texas property taxes are a bit higher than other states, with an average rate of 1.73%.
California estates are also free from estate and inheritance tax obligations as the estate does not levy either of these taxes. As in any other state, however, executors will have to be aware of the federal estate tax. California does require property taxes, albeit at a lower rate than most states, with an average tax rate of 0.75%.
Filing necessary tax returns
An executor must work to fulfill all tax obligations for the estate as laid out by the IRS and local regulations. Tax returns are necessary for the year when an individual passes.
Depending on the estate, executor responsibilities may include filling out the following forms:
- Form 1040 for the individual tax return for the year that the deceased individual passed away
- Form 56 to notify the IRS of your fiduciary relationship
- Form 8822 to change the estate’s address of record if necessary
Start Distributing Assets and Closing the Estate.
In accordance with the deceased person’s wishes, you will need to distribute assets to beneficiaries. In some cases, the transfer may be complicated to some degree, and if it is, you might consider retaining the services of an estate attorney to assist you.
Distributing assets to beneficiaries
After handling the administrative tasks involved with managing the estate, you can then distribute assets to beneficiaries. This process begins with filing a petition for final distribution with the court. If approved, the court will provide an order for distribution, which will allow you to follow through with transferring assets to beneficiaries.
As you distribute assets, you’ll need to ensure you closely follow the terms of the will and estate planning documents. You can transfer assets to beneficiaries straight from the estate account to the appropriate beneficiaries. With assets like property, you will also be responsible for facilitating the legal transfer of the title to the beneficiaries.
Finalize estate closure with the probate court
Once all of your tasks have been completed, you can file a petition for final discharge and order—this is the final step you will take as an executor. As part of this petition, you will need to include a final accounting — this final accounting 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.
After submitting the final accounting and completing the estate closure, you will officially be discharged from your duties as an estate administrator.
Common Challenges and Legal Considerations
The uninterrupted estate administration process alone is a complex and detailed one for executors to manage. However, executors may face several additional challenges that may disrupt the standard administration process.
Common challenges include:
- Disputes by beneficiaries – Beneficiaries may raise a dispute over their portion of a distribution, where the executor will have to mediate the conflict for a favorable outcome for all sides.
- Difficult beneficiaries – Even in cases where an executor is transparent and highly communicative, some beneficiaries may contest the executor because they want to receive their distribution of assets sooner.
- Unfamiliarity with local laws – Because estate administration is a complex process, executors may have a lack of clarity around their responsibilities or difficulty understanding the nuance behind certain legal requirements.
An attorney can provide valuable support and guidance through each of these circumstances. For example, an attorney can support executors in the negotiation and mediation process to resolve conflicts or provide guidance in understanding legal obligations to an estate.
If a beneficiary raises an unjust concern over a reasonable delay in the distribution of assets, an attorney can also represent you as the executor and build a defense to protect your position.
Emotional and Practical Support for Executors
Acting as an executor is a complex responsibility that can be stressful and emotionally taxing with all of the moving parts and requirements involved. In cases where an executor is a family member or close friend of a deceased individual, the difficulty of being an executor is even worse.
Some strategies for managing the stress and difficulty of the estate administration process include:
- Seeking the support of an estate administration attorney to offer additional guidance regarding administrative tasks and legal obligations
- Consulting financial planners, accountants, appraisers, and other professionals for guidance on managing estate assets
- Staying organized by maintaining a checklist of responsibilities, a planner of important dates, and a file of necessary documents
- Taking time for self-care and engaging in activities you enjoy
- Communicating with beneficiaries consistently so they are less likely to have questions or disputes
Find Support For Your Executorship Role Today
An executor of an estate has several duties to ensure the proper administration of an estate. This long list of duties includes responsibilities like reviewing the will, protecting estate assets, managing estate finances, distributing assets to beneficiaries, and more. The estate executor is not a simple and straightforward role—an estate planning attorney can be a valuable resource for an executor to offer guidance and ensure they have support in fulfilling their obligations.
At RMO Lawyers, we have decades of experience in providing guidance to executors as they navigate their legal responsibilities. We’ll support you in the process of understanding your obligations and following the various administrative tasks associated with working within the probate court and administering assets.
Contact us anytime at [email protected]. We’re happy to answer your questions or schedule a free consultation.
RMO LLP provides personal and efficient inheritance dispute services to individual and institutional clients. The firm’s attorneys focus on probate litigation involving contested trust, estate, probate, and conservatorship matters. Serving California and Texas, with offices in Los Angeles, Pasadena, Orange County, San Diego, Fresno, the Bay Area, Dallas, and Houston. For more information, please visit RMO Lawyers.
