An executor of an estate is the person named in a will to manage and settle the deceased person’s estate after their death. The executor is responsible for carrying out the instructions in the will, paying the deceased person’s debts and taxes, and distributing the remaining assets to the beneficiaries named in the will. The executor is also called a personal representative in some states.
Serving as an executor is a significant legal responsibility that requires time, organization, and attention to detail. Understanding what the role involves can help both people who are choosing an executor for their own will and people who have been asked to serve as executor for someone else.
What an executor does
The executor’s responsibilities begin immediately after the testator’s death and may continue for a year or more depending on the complexity of the estate. Key responsibilities include:
- Locating and filing the will — the executor locates the original will and files it with the probate court in the county where the deceased person lived
- Notifying interested parties — notifying beneficiaries named in the will, known creditors, and government agencies of the death
- Obtaining death certificates — ordering multiple certified copies of the death certificate which are needed for financial institutions, government agencies, and other purposes
- Inventorying assets — identifying and documenting all assets owned by the deceased including real estate, bank accounts, investments, retirement accounts, vehicles, and personal property
- Protecting estate assets — taking steps to protect estate assets during the probate process including maintaining insurance on real estate and vehicles and securing personal property
- Opening an estate bank account — opening a dedicated bank account in the name of the estate to receive income and pay expenses during the probate process
- Paying debts and expenses — paying valid debts, bills, and administrative expenses of the estate from estate funds
- Filing tax returns — filing the deceased person’s final income tax return and if necessary an estate tax return and a fiduciary income tax return for the estate
- Distributing assets — after debts and taxes are paid distributing the remaining assets to beneficiaries according to the terms of the will
- Closing the estate — filing a final accounting with the probate court and obtaining court approval to close the estate
The executor’s fiduciary duty
The executor has a fiduciary duty to the estate and its beneficiaries. This means the executor must:
- Act in the best interests of the estate and beneficiaries at all times
- Manage estate assets prudently
- Avoid self-dealing and conflicts of interest
- Keep accurate records of all estate transactions
- Communicate regularly with beneficiaries about the progress of the estate administration
- Treat all beneficiaries fairly and impartially
An executor who breaches their fiduciary duty can be held personally liable for any losses resulting from the breach and may be removed by the probate court.
How long does estate administration take
The time required to administer an estate depends on several factors including the size and complexity of the estate, whether the will is contested, the state where probate takes place, and how quickly financial institutions and government agencies respond to requests.
A simple estate with straightforward assets and no disputes might be settled in six to twelve months. A complex estate with business interests, real estate in multiple states, tax issues, or contested claims may take two years or more.
Is probate always required
Not all estates require formal probate proceedings. Many states have simplified probate procedures for small estates that can be completed much more quickly and inexpensively than formal probate. Additionally assets that pass outside of probate — such as jointly owned property, assets with named beneficiaries, and assets held in a living trust — do not require probate regardless of the estate’s size.
Even when probate is required the executor’s role is largely the same — they are simply working within the court-supervised process rather than outside of it.
Executor compensation
Executors are generally entitled to reasonable compensation for their services paid from the estate. In some states the amount of executor compensation is set by law as a percentage of the estate’s value. In others the executor is entitled to reasonable compensation based on the time and complexity of the work involved.
Family members who serve as executor often choose to waive their compensation especially in smaller estates. However for large or complex estates compensation is appropriate and the executor should not feel obligated to serve without pay.
Choosing an executor for your will
Choosing the right executor is one of the most important decisions you will make when creating your will. The ideal executor is someone who is:
- Trustworthy and honest
- Organized and detail-oriented
- Financially responsible
- Willing and able to devote the time required
- Able to remain impartial if beneficiaries disagree
- Likely to outlive you
- Located reasonably close to where you live or able to travel as needed
Many people choose a spouse, adult child, or trusted friend as executor. For complex estates or situations where family conflict is anticipated a professional executor such as a bank or trust company may be a better choice.
It is essential to ask the person you are considering before naming them as executor. Serving as executor can be a significant burden and the person should understand what is involved before agreeing.
Naming a successor executor
In addition to naming your primary executor it is important to name one or more successor executors who will serve if your primary executor is unable or unwilling to do so. Without a successor executor the court will appoint an administrator if your primary executor cannot serve.
What happens if there is no will
When a person dies without a will they are said to have died intestate. In this case there is no named executor. Instead the probate court appoints an administrator — often a close family member — to manage the estate. The administrator has essentially the same responsibilities as an executor but distributes assets according to state intestacy laws rather than the deceased’s wishes.
Getting help as an executor
Executors are not expected to be legal or financial experts. Most executors work with an estate planning or probate attorney to navigate the legal requirements of estate administration. The cost of the attorney is paid from estate funds not by the executor personally.
Working with an attorney is especially advisable when the estate is large or complex, when there are potential tax issues, when beneficiaries are in conflict, or when the executor is unfamiliar with the probate process.
Key terms to know
- Executor — the person named in a will to manage and settle the estate after the testator’s death
- Personal representative — another term for executor used in some states
- Testator — the person who created the will
- Fiduciary duty — the legal obligation to act in the best interests of the estate and beneficiaries
- Probate — the court-supervised process of validating a will and distributing an estate
- Intestate — dying without a valid will
- Administrator — a person appointed by the court to manage an estate when there is no will
- Successor executor — the person named to serve as executor if the primary executor is unable or unwilling to do so
Sources
- American Bar Association — Public Resources
- USA.gov — Estate Planning
- National Institute on Aging — Getting Your Affairs in Order
This article is for general informational purposes only and does not constitute legal advice. Executor responsibilities and probate procedures vary by state. Consult a licensed attorney for guidance specific to your situation.