Can An Executor Take Everything?
An executor is a legal term referring to a person named by the maker of a will or nominated by the testator to carry out the instructions of the will. Typically, the executor is the person responsible for offering the will for probate, although it is not required that they fulfill this. The executor’s duties also include disbursing property to the beneficiaries as designated in the will, obtaining information of potential heirs, collecting and arranging for payment of debts of the estate and approving or disapproving creditors’ claims. An executor will make sure estate taxes are calculated, necessary forms are filed, and tax payments are made. They will also assist the attorney with the estate. Additionally, the executor acts as a legal conveyor who designates where the donations will be sent using the information left in bequests, whether they be sent to charity or other organizations. In most circumstances, the executor is the representative of the estate for all purposes, and has the ability to sue or be sued on behalf of the estate.
The executor holds legal title to the estate property but may not use the title or property for their own benefit, unless permitted by the terms of the will. When there is no will, a person is said to have died intestate without testimony. As a result, there is no tangible testimony to follow, and hence there can be no executor. If there is no will or the executors named in a will do not wish to act, an administrator of the deceased’s estate may instead be appointed.
Choosing An Executor (Also Called A Personal Representative)
The person who sorts out your property when you die and carries out the instructions in your will is called your executor. You can choose whoever you like to do this job (and it can be more than one person) but it’s an important choice to get right.
What does an executor do?
Your executor takes on the job of carrying out the instructions you leave in your will when you die. It can be a complicated job even if your instructions and your property are quite simple – it’s not unusual for the process to take several months.
The job of an executor is sometimes difficult. For example they might have to:
• Decide when to sell your property so that the people who inherit the proceeds get the most money
• Make sure the right amount of Inheritance Tax, Capital Gains Tax or Income Tax gets paid
Who can be an executor of a will?
Anyone aged 18 or above can be an executor of your will. There’s no rule against people named in your will as beneficiaries being your executors. In fact this is very common. Many people choose their spouse or civil partner or their children to be an executor. But that doesn’t mean they have to write them out of the will. Up to four executors can act at a time, but they all have to act jointly so it might not be practical to appoint that many people. It’s a good idea, though, to choose two executors in case one of them dies before you do. For example, you might choose one family member and one professional, like a solicitor or accountant.
Professional executors tend to charge, but it can be helpful to have someone involved with specialist knowledge. You can appoint substitute executors to cover the situation if your first choice dies before you. When you’ve chosen your executor, Make sure you confirm your executor’s full name and address in your will otherwise they might not be able to do their job, if they cannot be found. Agreeing to be the executor of an estate (also known as a personal representative) is a bigger decision than most people realize. It is important to consider the responsibility of the position before agreeing to take on the role.
Here are five things you should know before signing.
The Complexity of the Estate
Taking on the executor role is not simply a matter of reading the will and using it as a set of instructions for giving away someone’s wealth. An executor essentially steps in for the testator (the person who wrote the will) and sees to all the final arrangements—financial and otherwise. Make sure you can handle all that is involved before accepting the responsibility. Consider the complexity of the estate, whether you have the time to devote to the immediate responsibilities required, as well as the multitude of duties that come into play when the testator passes away. Generally speaking, the larger the estate whether in terms of property, possessions, assets, or the number of beneficiaries the more difficult and time consuming it will be to disperse. For example, a house, several bank accounts, a stock portfolio, and possessions will all have different steps to dispersal and clearing hurdles like taxation. This is why high-net-worth people usually use professionals to both set up an estate plan and then help execute it when they pass on. That said, even small estates with few beneficiaries can become problematic if just one person contests the will or is otherwise inclined to throw a wrench into the process. The best way to assess how difficult the job will be is to ask to see a copy of the current will or a draft of the will if one is in the works. If there are obvious red flags unequal distributions to children, trusts or annuities to untangle, or anything else you feel uncomfortable with it may be best to pass on the responsibility.
Being an executor takes time and energy, and requires a lot of attention to detail—in fact, it is almost solely concerned with details. It is far better to decline the honor of becoming an executor of an estate for the right reasons (the inability to do the job properly) than to take it on for the wrong ones (a sense of obligation). Before you agree to execute a will, you should be certain that you have the time to do the job. If you have a busy professional life or a lot of family commitments, it may be difficult to set aside the time to be an executor. It is important to make the decision based on your current situation. As long as the testator is alive, you can be added or removed as the executor of the estate. You can also request a co-executor or professional help. However, you will not be able to appoint someone else if you find out you don’t have the time after the testator has passed away. So it is important to review your decision to serve as an executor every time your situation changes significantly (you get married, have kids, get older, etc). It is natural for a testator to change executors throughout a lifetime.
Some people agree to be an executor thinking that it will be years before they have to do any work. However, doing the job properly means going to work immediately.
To be prepared, you should:
• Make sure the testator is keeping a list of assets and debts, including bank accounts, investment accounts, insurance policies, real estate, and so on.
• Know where the original will and the asset list is being held and how to access them.
• Know the names and contact details of attorneys or agents named by the testator, and what their function is.
• Discuss the testator’s wishes as far as a funeral or memorial service, including instructions for burial or cremation.
• Discuss the will with the testator and, if possible, with the beneficiaries in order to minimize problems in the future.
• Have a copy of all these documents.
Again, it is important that you have the time to do gather this information as soon as possible after you’ve agreed to be the executor.
• Duties After the Testator Dies: Of course, the real work starts when the testator passes away. It is then that the executor is called on for funeral arrangements, locating and filing the will, clearing probate, managing assets, clearing debts, submitting tax returns, establishing and managing any trusts, responding to legal challenges, and more. In reality, being an executor is simply carrying out the details of the will and complying with legal requirements. It is easy as long as you are organized and detail oriented. Even if you aren’t detail oriented, the estate will pay reasonable costs for professional help. That said, you will still need to be involved at every stage.
• How You Will Be Paid: Each state has laws determining how an executor is paid. It can be by the hour, as a flat fee or as a percentage of the estate. Sometimes the fee is determined by the probate court judge. In addition to the regular fee, there may be an “extraordinary fee” if an unusual amount of work is involved, for example, selling off personal property or managing litigation on behalf of the estate. The testator is permitted to state in the will how they want the executor to be paid and that may override applicable state law. Executors are also entitled to compensation for expenses incurred as they carry out their responsibilities.
Payment is made from the estate after all the bills are paid, but before any money goes to the beneficiaries. If being an executor is likely to take a major portion of your time and cut into your ability to do your regular work, it’s especially important to get some sense of how you will be compensated. Executors are also permitted to refuse compensation for example, if you are doing this task for a member of your family and want the whole balance of the estate to go to the beneficiaries.
Duties and Responsibilities of an Executor of a Will
Being chosen an executor is both an honor and an obligation. Before accepting, you should be sure you understand what you’re getting into. Broadly speaking, you’ll be distributing the deceased person’s property and arranging for payment of estate debts and expenses. Specific duties will include: choosing the type of probate, filing the will for probate, setting up an account for paying bills, paying estate debts and taxes, maintaining willed property, making and filing an inventory with the court, distributing assets, and many more.
It’s a big commitment. An executor is legally responsible for sorting out the finances of the person who died, generally making sure debts and taxes are paid and what remains is properly distributed to the heirs. State law varies on the requirements of who can serve as executors, but generally, executors tend to come from the close ranks of family, spouses, children, parents and siblings. Although state laws provide for the payment of executors, since so many executors are close family members, they often don’t ask to be compensated. In addition to carrying out duties in a diligent, impartial and honest manner, an executor may also be required to perform any or all of the following activities, among others:
• Get a copy of the will and file it with the local probate court: The executor is in charge of locating, reading and understanding the will usually, even if probate isn’t necessary, the will still must be filed with the probate court. At this step, the executor also determines who inherits the property.
• Notify banks, credit card companies, and government agencies of the decedent’s death: The Social Security Administration along with the decedent’s bank and credit card companies are just some examples of who should be notified of the death.
• Decide what kind of probate is necessary: Because inheritance laws may facilitate the passing of certain properties without probate (such as property held jointly by a husband and wife), probate isn’t always necessary. Additionally, the value of the estate may allow it to pass through an expedited process. If probate is required, you need to file a petition with the court to be appointed an executor. You will likely need an attorney’s assistance to accomplish this.
• Represent the estate in court: An executor may be required to appear in court on behalf of the estate.
• Set up a bank account for incoming funds and pay any ongoing bills: If the decedent is owed money such as incoming paychecks, this account can hold them. An executor should be on the lookout for mortgages, utilities and similar bills that still need to be paid throughout the probate process.
• File an inventory of the estate’s assets with the court: In many states, the court requires the executor to submit a detailed inventory of the assets in the probate estate.
• Maintain the property until it can be distributed or sold: This includes keeping up a house until it is distributed to heirs or sold- even deciding whether the property needs to be sold at all. Also, an executor must be sure to find all personal property in the estate and protect it until distribution. If the decedent had a safety deposit box, the executor should locate it and keep it safe.
• Pay the estate’s debts and taxes: State law dictates the procedure for notifying creditors, and the estate must also file income tax returns from the first of the current year until the date of the decedent’s death. If the estate is large enough, there may be state and/or federal estate taxes to pay as well
• Distribute assets: Distribution occurs according to the wishes expressed in the will. If there is no will, state intestacy laws apply.
• Dispose of other property: If there is any property left after paying off the estate’s debts and distribution to heirs, the executor is responsible for disposing of it.
Since estates vary greatly in size and complexity, and executor’s job may be easy or challenging to carry out- and responsibilities may very well go beyond the 10 basic items in this list. But while an executor can decline the position or resign at any point in the process, sometimes all that is needed is some legal advice. Consulting with an attorney is generally to make sure that the executor properly complies with his or her duties.
An executor is the person named in the Will who will take on the responsibility to administer the estate.
The responsibilities of an executor include:
• Identify the assets and liabilities of the testator;
• make funeral arrangements;
• make an inventory of the property in the estate;
• probate the Will;
• call in the property after grant of probate is issued;
• pay all the debts and taxes;
• Distribute the property to the beneficiaries.
When you need legal help with a probate or estate planning attorney, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506