What Is the Role of an Executor in Estate Planning?
Understanding the duties of an executor in estate administrationBy Canaan Suitt, J.D. | Last updated on October 5, 2022
Use these links to jump to different sections:
- What Is an Executor?
- How To Name an Executor of an Estate?
- Responsibilities of an Executor
- Questions for an Estate Planning Attorney
Executors play an essential part in ensuring an individual’s estate plans are fulfilled when they die.
Sometimes called a personal representative, the executor of a will is an individual appointed to distribute an estate’s assets to beneficiaries according to the will’s directions.
Executors have a fiduciary duty to act in the best interests of the decedent (deceased person) and their beneficiaries.
This article will explain what an executor is and does. If you have been appointed as an executor or anticipate these responsibilities in the future, consider speaking with an estate planning attorney about how to navigate the process effectively.
What Is an Executor?
“The executor is someone who has power to distribute the proceeds under a last will and testament,” says Ohio estate planning and probate attorney Jay E. Michael.
Executors are appointed by the “testator,” or the person who created the will. If the testator didn’t appoint an executor in their will, the probate court appoints one.
There can be multiple co-executors. This often happens when a testator appoints all their children as executors instead of just one.
Co-executor arrangements tend to complicate the probate process. For example, sibling co-executors may not live near one another, making collaboration difficult.
There will also be more legal documentation and paperwork, and some siblings may have no interest, time, or aptitude for dealing with the estate.
Additionally, siblings appointed as co-executors may not get along, leading to disputes.
To avoid these issues, some co-executors may agree to give up their role, leaving the executor’s role to just one individual. Or all appointed co-executors could waive their appointment and appoint someone else instead.
Estate planning roles that are similar to but different from that of an executor include:
- Trustees. An executor is an individual who executes a will. “A trustee,” on the other hand, “is a person who would distribute things under the inter vivos or [living trust] of an individual. In either event [as an executor or trustee], that person… has a duty to follow what either the will or the trust says in ordering the distribution to children, parents, family members, friends, charities, or whatever the case may be,” says Michael.
- Administrators. “When you don’t have a will,” he says, “the person in Ohio is named the administrator.” Administrators “make certain that the proceeds of your estate are distributed pursuant to how [your state’s] statute of descent distribution orders it to be transferred, which may be different from how the person who passed away wanted.”
How To Name an Executor of an Estate?
Appointing an executor is straightforward. When you create a will, you can appoint the executor in the will.
Keep in mind that state laws bar some individuals from serving as executors. For example, minors (individuals under 18) and convicted felons cannot serve as executors. Your state may have additional requirements on who can and cannot be an executor.
But beyond these basic legal requirements, the choice is up to you.
The executor should be someone you trust. They should be honest, organized, and familiar with your situation. Ultimately, their job is to carry out your last wishes.
Keep in mind that the executor’s job can be complex and time-consuming. You want to appoint someone you feel will be willing to take on the job and will be able to handle it well.
For example, individuals often appoint a sibling, spouse, close friend, or their adult children.
It’s a good idea to also appoint an alternate or successor executor. This “backup” individual will take on the executor duties if the first person you appoint cannot or refuses to be the executor.
Responsibilities of an Executor
An executor’s job includes several essential tasks:
- Probate. The executor initiates the probate process by filing a copy of the testator’s last will and testament with the local probate court. The executor may also need other documentation, such as the individual’s death certificate and an inventory of estate assets.
- Estate assets. The executor ensures that all remaining assets of the estate are accounted for. Estate assets are everything the decedent owned, including:
- Financial assets such as money, bank accounts, stocks, etc.
- Real estate
- Life insurance policies
- Retirement accounts
- Other personal property, such as cars, furniture, and art
- Distribute or dispose of the property. It’s the executor’s job to distribute estate assets to beneficiaries. If any property is left after assets have been distributed and debts settled, the executor must dispose of it.
- Select the right kind of probate. Depending on the type of estate planning the decedent used, probate may not be necessary. If probate is required, the executor may have to take the estate through formal probate procedures depending on the size of the estate and state law. If the estate qualifies as a small estate, the executor may be able to select an expedited probate process.
- Appear in probate court on behalf of the estate. The executor not only initiates the probate process, but they also see the process through to its conclusion. This may involve making court appearances on behalf of the estate.
- Settle the debts of the estate and pay remaining bills and taxes. The executor must contact all the decedent’s creditors (such as banks and credit card companies) to ensure all debts are discharged. Additionally, estates must file income tax returns from the beginning of the year until the date that the individual died. Depending on the total value of the estate and tax avoidance strategies used, estate taxes may also be due. Finally, the executor can set up bank accounts to pay off any remaining bills or receive payments from others.
- Make funeral arrangements. Finally, the executor may be involved with making or finalizing funeral arrangements.
Questions for an Estate Planning Attorney
If you’ve been appointed an executor, have questions about the process, or are overwhelmed with legal forms and procedures, consider speaking with an estate planning attorney.
An attorney can assist you through the entire process, from legal paperwork to court appearances.
Fortunately, many lawyers provide free consultations for potential clients. These meetings let you get legal advice and decide if the attorney meets your needs.
To get the most out of a consultation, ask informed questions such as:
- What are your attorney’s fees and billing options?
- What amount of time will be required to fulfill the role of executor?
- What are the steps to the probate process?
- What do I do first?
- How do I file a will with the probate court?
- How do I obtain an inventory of estate assets?
Look for an estate planning attorney in the Super Lawyers directory for legal help.
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