What is an Executor of an Estate?
When a person passes away, their worldly possessions are left behind, however, they can still guide how those possessions are distributed through instructions in their will. An executor is named in the will—sometimes known as a personal representative—to carry out the terms of the will. Choosing an executor is a major decision when an individual is having an estate plan prepared. The named executor will manage and protect the financial assets of the estate, including bank accounts, cash, investments, and property.
The executor of an estate will begin the process by submitting the will to the probate court so that they can officially be named as the executor, then will carry out the wishes of the decedent. Since executors have extensive responsibilities, it is essential to ensure the chosen person is someone that can be trusted implicitly to follow the wishes of the decedent. Some people will name a family member as the executor, while others will name a close friend or an attorney as the executor.
Trust is essential in this process. If a person wants to be the executor of an estate, there are two paths—either the person has been named by the decedent, or, if no executor was named, an individual can ask that the court name them as executor. While the court does not have to name that person as executor, they may do so. Being named as executor of estate can be complex and may bring the emotions of loved ones into the mix as well.
What Are the Executor’s Responsibilities?
While the executor is responsible for carrying out the wishes of the decedent, this can encompass a minimal level of necessary tasks, or many tasks, some that are more complex than others. The extent of the decedent’s estate will determine the level of responsibility the executor will be responsible for. The executor has a fiduciary duty to act in the best interests of the estate and the beneficiaries by doing the following:
- Collecting a death certificate—usually from the funeral home—in order to perform the duties of the executor. Depending on the size of the estate, as many as a dozen copies of the death certificate could be necessary, as they will be used for insurance claims, closing bank accounts, and more.
- Obtaining a copy of the decedent’s will, then filing the will with the county probate court. While the executor will usually know where to locate the will, if not, family members or the lawyer who prepared the will should know.
- Banks, governmental agencies, creditors, and others must be notified of the decedent’s death. If the decedent was receiving Social Security benefits, Medicaid benefits, or V.A. benefits, then these entities must be notified so they can stop the benefits. The Department of Motor Vehicles must be notified of the death so the decedent’s driver’s license can be canceled. Banking institutions, creditors, and credit bureaus must also be notified of the death.
- The executor will post a notification in a local newspaper so that anyone with an interest in the estate will be made aware of the death.
- An estate bank account will be opened so all debts can be paid through this account, as well as bills such as a mortgage or insurance premiums. These will be kept current until the estate has been fully settled.
- An inventory of the assets of the estate will be taken and filed with the court.
- When necessary, valuations will be done on certain properties.
- All property in the estate will be maintained until it is distributed to heirs or sold to pay the debts of the decedent.
- All debts and taxes for the estate will be paid, and a final tax return filed on behalf of the decedent.
- All remaining assets will be distributed to heirs as outlined in the will.
Who Can Be an Executor of an Estate?
Anyone can be chosen as an executor. Many people choose a family member, but this can come with its own set of issues when other family members are not happy with how the decedent divided his or her estate. A professional can also be chosen, usually an estate attorney, a banking professional, or a financial professional. When choosing an executor, the person should first and foremost be trustworthy and responsible.
Think about who you would absolutely trust to carry out your wishes. It’s not usually a good idea to choose someone who lives out of state, as traveling back and forth can become burdensome. You should always talk with the person you want to name as executor before you do so to ensure your decision is acceptable to them. Your chosen executor should be financially stable and in good standing with their own finances.
A person with multiple creditor liens might not be allowed by the court to proceed as executor. Make sure the person you choose can make objective decisions for your assets and your heirs. Finally, make sure the person you choose is actually eligible. Many state courts will not approve a former felon as an executor or a minor.
Is There Anything an Executor Cannot Do?
An executor may not make any decisions regarding the estate until the person has passed away. A successor trustee for a trust can make decisions regarding the estate when the Grantor becomes incapacitated, but an executor does not have that legal right. Court approval is required before the executor can commence with his or her duties. Without this legal approval—even though the person was named as executor—most financial institutions will not allow access to the decedent’s assets.
The executor may not, under any circumstances, sign an unsigned will, even if he or she believes the decedent intended to sign the will. Wills are only valid when they have been signed by the decedent in a legal manner prior to their death. The executor may not change the terms of the will or the beneficiaries in the will. Even in cases where the executor believes the decedent would have wanted a change made, he or she may only carry out the wishes stated by the decedent in their will.
Contact Eric Gullotta with Questions Regarding Executor of Estate
If you have been named executor of estate and have questions, attorney Eric Gullotta can answer those questions in a comprehensive, yet easy-to-understand manner. The Gullotta Law Group can ensure that being the executor of a loved one’s will goes as smoothly and quickly as possible. We can guide you through the process, helping you handle the many duties of an executor and deal with any unexpected problems along the way. Contact the Gullotta Law Group today.