An executor is someone named in a will who is charged with carrying out the directions of the will. Executors supervise the property of the deceased person while debts are settled.
A person named as executor is not required to accept the responsibility. If the named executor declines, the alternate executor will assume the responsibility. If the will names no alternate executor or if no will exists and therefore no executor is named, the court will appoint someone to act as the executor. Further, if the executor begins the required duties but cannot continue, the executor may resign at any time.
Hiring an Attorney
The probate process takes between six months and one year for an average estate. However, the executor can get professional help. A lawyer can handle the probate court process, and an accountant can prepare the tax forms. The assets of the estate will pay their fees.
The executor may be able to prepare the required legal forms alone if he or she fully understands the will, is the main beneficiary and is familiar with the assets of the estate (e.g., house, bank account, insurance).
If, however, the estate has several kinds of property, a large tax liability or potential disputes among heirs, a lawyer could be necessary. An attorney can be hired to help as needed, answering legal questions as they arise, reviewing documents before they are filed with the probate court and preparing the estate tax return. An attorney also may be hired to handle the entire process.
Assistance for Executors
Many courts offer assistance to pro se executors (those who represent themselves). Probate court clerks may answer basic questions about court procedure but may not say anything that could be construed as legal advice. Some courts have staff lawyers who review probate documents and explain how to fix errors.
In some states, paralegals help with probate paperwork. They do not offer legal advice but prepare documents as the executor instructs and file them with the court.
For certain tasks, an executor may want to hire an accountant or appraiser rather than a lawyer. For example, a certified public accountant may be a helpful adviser on estate tax matters.
The Original Will
If the original will cannot be found, the executor can contact the lawyer who drafted it. The lawyer’s name often is listed at the end of the will. The executor also can contact the probate court in the county where the deceased lived.
Copies of the Death Certificate
The executor should make at least 10 certified copies of the death certificate. They are necessary to collect insurance proceeds and other death benefits. You will need to provide a certified death certificate to notify the bank that you will be managing accounts, to close accounts at brokerage firms, to sell stock, etc. To obtain Social Security benefits, you will need to send a copy of the death certificate along with a letter notifying the Social Security Administration of the death.
The easiest way to obtain the copies is to ask the funeral home or mortuary to order them. In the county where the person died, the vital statistics office or health department may provide certified copies of the death certificate. It also can be ordered through county or state websites.
The executor must contact beneficiaries and inform them of the death. The court will need contact information for all beneficiaries.
The executor is obligated to pay debts from the estate’s assets and is not personally liable for the debts (unless the executor is the surviving spouse and the bills are joint bills). Notice of most debts will come through an ordinary billing notice sent to the deceased. The will or state law gives an executor the right to pay the bill without any formal process. If the estate goes to probate, creditors have a limited time in which to file a formal claim with the court. The executor must notify creditors of their right to make a claim by a legal notice published in local newspapers or an individual notice sent by mail.
If the assets are insufficient to pay the bills, state law provides a priority list for making payments to creditors.
Duty of Good Faith
An executor has a duty to act in good faith, known as a fiduciary duty. The executor cannot profit from financial transactions from the estate, such as buying property from the estate at below-market rates.
Executors are legally entitled to be paid from the estate assets for their time. The fee scale is set by the state and may be a percentage of the estate or reasonable compensation determined by the probate court.
The executor must transfer property to beneficiaries and pay debts and taxes. When distributing the estate to beneficiaries, the executor prepares a report for the beneficiaries showing how their shares were calculated. Beneficiaries sign a release indicating that they accept the accounting. If the beneficiaries do not accept the accounting, the court may approve the accounting.
Last updated: Oct. 1, 2008