It’s important that you understand what an executor must do (and not do) before you agree to be an executor. Once you agree to serve as an executor and the court approves, you cannot withdraw from your responsibilities unless the court gives you permission.
Jump ahead to these sections:
- What an Executor of an Estate Is Responsible for After a Death
- What an Executor of an Estate Isn’t Responsible for or Cannot Do After a Death
You cannot do anything as executor until the person or people who named you in their will (the “testator”) dies. However, if you know that the testator named you in the will, it would be wise to discuss with the testator what your responsibilities as the executor of their estate might be.
The more you know and understand what the testator wants and what property you will have to probate, it will make your job as executor a little easier. Being an executor means that you take on the legal responsibilities of the estate.
Post-planning tip: If you are the executor for a deceased loved one, handling their unfinished business can be overwhelming without a way to organize your process. We have a post-loss checklist that will help you ensure that your loved one's family, estate, and other affairs are taken care of.
What an Executor of an Estate Is Responsible for After a Death
A testator is referred to as a “decedent” after death. As the executor of a decedent’s estate, you are responsible for seeing that the estate is administered according to the decedent’s wishes and within the limits of state law.
Although the specifics of every estate will be different, every executor generally has 10 things for which they are responsible. When these ten responsibilities are completed, you will have fully administered the decedent’s estate.
1. Acquire the decedent’s original legal documents
Because you were named an executor, this means the decedent died with a will. Had the decedent died without a will (called “intestate”), the court would have appointed you as an administrator or personal representative.
As an executor, your first responsibility is to acquire the decedent’s legal documents relevant to the probate of the estate. At the least, this may include:
- The original will (and codicils, if any) — a codicil is a supplement to a validly executed will
- Trust documents
- Multiple copies of the death certificate
The court will not probate a copy of a will; you must have the original. If the decedent did not possess the original, the attorney who drafted the will likely will have it.
You will need multiple duplicates of the death certificate for administering the decedent’s estate. Often, the funeral director will obtain these for you. If not, it is your responsibility.
2. Petition the court for probate
Once you have obtained the decedent’s will and death certificate, you may petition the court to probate the estate. You will apply to the court located where the decedent resided. You also will apply to serve as the executor of the estate.
Having been named in the will, this often is a rubber-stamp exercise, but the court will confirm that you are competent and willing to serve as the executor.
If so, the court will grant “letters testamentary,” which authorizes you to conduct the estate’s business as the executor.
However, you are not obligated to serve as the executor just because the decedent named you. Once you accept, however, you must fulfill the legal responsibilities of that role. If you have concerns about your ability to do that, contact an attorney for assistance.
3. Appraise the estate
Perhaps the most burdensome responsibility is collecting all of the decedent’s property and having an appraiser value the estate. This requires you to collect all assets and liabilities. Assets may include:
- Real property (land)
- Insurance policies
- Retirement accounts
- Investment accounts
- Government benefits
- Jointly-owned property
- Property in safe-deposit boxes
- All personal property
Liabilities may include:
- Outstanding credit card debt
- Any unpaid bills
- Funeral expenses
- Court fees
- Executor and attorney fees
You are responsible for exercising due diligence to account for all assets and liabilities of the estate. If the decedent has not prepared all this information for you, this task may begin by literally rummaging through the decedent’s home to itemize assets and identify bills and account statements. This responsibility can take a considerable amount of time.
4. Notify the creditors of the estate and the decedent’s legal heirs
While you are collecting all the assets and liabilities and appraising the estate, you also must notify all of the creditors of the estate and the decedent’s legal heirs about the probate proceedings.
This lets anyone with an interest in the estate know that the estate is going to be distributed, and if they want to claim their interests, they must notify the court.
State law will dictate how much time you have to notify them (usually several months after probate proceedings are initiated) and how much time they have to assert their claims.
5. Manage the property in the estate
Until the property in the estate is distributed according to the terms of the will, it is your responsibility to manage the estate. This requires that you:
- Protect all assets (perhaps change locks on doors)
- Establish an estate account
- Insure property
- Invest securities and capital funds
- Make appropriate sales
- Earn income
- Preserve principal funds
- Cancel services and accounts
Your fiduciary responsibilities require that you reasonably manage the estate property as if it were your own. You could be personally liable for any mismanagement of funds and the court could remove you as executor of the estate.
6. Pay the debts of the estate
You may use the assets collected and preserved in the estate account to pay the debts of the estate. You may have to front any unpaid funeral and burial expenses, but the estate will absorb those costs. You must pay all the debts of the estate before the property is distributed.
The terms of the will may dictate whether the estate will exonerate the beneficiaries of any liabilities that accompany the assets that the decedent devised in the will (such as mortgages on homes or loans associated with cars).
If exonerated, the beneficiary will be free and clear of the accompanying liability, which the estate will absorb.
7. Pay the taxes of the estate
As part of paying the debts of the estate, you also are responsible for paying all appropriate income taxes for the year that the decedent died and any estate or gift taxes that may be imposed.
Taxes can get complicated quickly, so consult with an accountant or tax attorney. The estate would incur any resulting fees.
8. Distribute the assets of the estate
Once all the debts are paid, you must distribute the property in the estate according to the terms of the will (or to the legal heirs, as defined by state law, in the case of an intestate estate).
If the decedent had an estate plan that incorporated any non-probate instruments, the property associated with those would not be part of the probate estate that you would distribute. Nonprobate instruments would include:
- Life Insurance
- Payable-on-death accounts
- Retirement accounts
- Joint accounts
The property subject to these instruments would be distributed outside of probate, according to the terms of the individual instruments.
9. Prepare a final accounting of the estate
When you have distributed all the probate property, you must prepare a final accounting of the estate. This will include every single transaction that you conducted as the executor of the estate.
You will have kept detailed records and receipts of every transaction, purchase, payment, source of income, investment, deposit, and expenditure that you performed on behalf of the estate. The beneficiaries must approve the accounting.
10. Close the estate
When the beneficiaries approve the final accounting, you must submit your report to the court. Upon the court’s approval, it will close the estate as fully administered.
What an Executor of an Estate isn’t Responsible for or Cannot Do After a Death
It’s just as important not to do the things that the law prohibits as it is to fulfill the responsibilities that the law requires as an executor. Here are 10 things that you may not do as an executor.
1. Act as the executor before the testator dies
The testator has every right to revoke or amend a will, which can include replacing you as the executor. You may not take any action upon the estate until the testator dies and the will becomes effective.
2. Act as the executor before the court appoints you
Just because the testator dies does not mean that you can immediately assume the role of executor.
You must apply for letters testamentary, which the court will issue to authorize you to act on behalf of the estate as the executor. Until then, you have no legal rights or responsibilities toward the estate.
3. Prevent someone from contesting the validity of the will
Anyone with an interest in the estate (including beneficiaries named in the will, as well as legal heirs who would inherit through intestacy if the court determines that the will is invalid) has a right to contest the validity of the will.
4. Validate an otherwise invalid will
If the court determines that the will is invalid, there is nothing an executor can do to validate the will. Only a testator can execute a valid will.
5. Change anything in the will
Likewise, an executor may not amend or alter the will or any part thereof. Even if the executor thinks that the terms of the will are unfair or unreasonable, the executor is legally responsible to administer the estate according to the terms of the will.
6. Give away any property not provided for in the will
The executor holds no title to any property in the estate unless the executor is also a named beneficiary in the will. Otherwise, the executor’s responsibility is to transfer the legal title of the property in the estate to the designated beneficiaries or legal heirs.
To distribute property in a manner contrary to the terms of the will or the laws of the state is deemed mismanagement of the estate, for which the executor could be personally liable.
7. Act contrary to the terms of the will or the best interest of the estate
The executor owes a fiduciary duty to the estate to administer the estate in accordance with the terms of the will, as set out by the testator/decedent unless the terms of the will violate state law or are contrary to public policy.
The executor is responsible for defending the estate against any legal claims brought against the estate.
8. Not benefit the beneficiaries named in the will
The executor also has a fiduciary duty to benefit the beneficiaries. Ideally, the interests of the beneficiaries are in accord with the wishes of the testator.
However, if those two interests conflict (such as if the testator directed the executor to destroy all the property in the estate, which would be deemed wasteful), then the executor must seek the intervention of the court for guidance.
9. Commingle funds
The executor is prohibited from acting contrary to the fiduciary rules of prudence, which includes commingling personal funds with funds of the estate. All estate funds must be held in a separate account.
10. Exercise self-interest not provided for in the will
Although an executor may also be a beneficiary in the will, the executor may not administer the estate with any self-interest or self-dealing.
This means, for example, that if the executor must sell some property in the estate, the executor may not contract with himself or herself to purchase the property personally.
The Executor of an Estate Bears a Heavy Burden
Serving as an executor of an estate is not to be taken lightly. It is an honor and testament to trust that a testator would name you as the executor. You must offer the same respect to the decedent by carefully considering whether you will be able to fulfill your responsibilities in that role.
Now that you're familiar with what an executor does and doesn't do, it might be a good time to take the first step and name or update the executor on your will. You can compare the most popular attorneys and services below.
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