Executor

By James Parker
/
April 5, 2022

What Is an Executor?

An executor is the manager of the estate of an individual appointed by the testator in their last will and testament. The executor is in charge of not only managing the will, but also in charge of carrying out any instructions that have been left by the testator.

Unlike an administrator appointed by the court, the executor is chosen by the testator. This means that the executor is not required to be an expert on law or finance. An executor is, however, bound by a concept known as “fiduciary duty.”

Fiduciary duty requires the executor to act with “good faith” and transparency. Good faith requires that the executor legally act on behalf of the testator’s wishes rather than the executor’s. If a beneficiary or other individual feels that the executor is unlawfully enriching themselves rather than respecting the wishes of the testator, they can be legally liable.

In addition to any personal duties, executors have a number of duties in overseeing the estate. These duties can include:

  • Locating and managing the testator’s assets before they are distributed to beneficiaries
  • Choosing whether to involve the probate court for disputes
  • Filing the will with the probate court for record keeping
  • Deciding any inheritance for ambiguous clauses
  • Terminating any leases, credit cards, or other liabilities
  • Notifying banks, state and local governments, the social security administration, post office, or any other offices of the testator’s passing
  • Establishing an estate bank account for any final paychecks, dividends, or any other payments to be received
  • Paying any necessary utilities, mortgages, or insurance premiums
  • Supervising the division of property or assets to beneficiaries

The executor will manage all these matters as well as any specific requirements of the testator’s will.

Key Takeaways

  • Executors are responsible for managing the estate of the testator as well as fulfilling the standard procedures for post-death filing.
  • Executors have fiduciary responsibilities as well as personal liabilities in the event of an issue with the will, including unpaid taxes or debts owed by the testator.
  • In addition to navigating local laws and specific instruction from the testator, an executor may have to contend with multiple co-executors who may interpret the testator’s instruction differently. 
  • If you want to establish an executor in your last will and testament, an experienced Trusts & Estates attorney may be able to improve the outcome of your case by utilizing experience and expert knowledge.

Executors, Trusts, and Estates

Executors are given an enormous amount of responsibility in regards to the settlement of the testator’s estate. In addition to dealing with state and federal laws, the executor must consider a number of other factors.

Other Executors

While testators can designate a “sole executor,” there may be instances in which multiple executors are named. For example, parents may name all of their children as co-executors. This gives all children equal responsibility for the distribution of the estate.

This can cause difficulty if the children have disputes or are simply out of the state or country at the time. One of the biggest issues with having multiple executors is that most forms must be signed by all executors named. This can make it difficult to move forward with even the most basic procedures if an executor is unable to be found or unwilling to cooperate.

The co-executors will also be responsible for securing assets, selling property, dealing with creditors, and dealing with tax matters. If there is poor communication, it can be confusing and difficult to manage these complex transactions accurately. In the event where multiple executors are appointed, the executors can agree on a single executor to be the sole executor and the rest can waive their appointments. 

Heirs and Liability

The executor is responsible for the estate of the testator. This includes payment of all relevant taxes. In the event that the executor is unable to pay all of the taxes with the estate of the testator, the executor will be liable for the taxes. 

Additionally, if the executor fails to secure the testator’s assets make the last wishes of the testator known, they may risk some heirs or beneficiaries looting the property of the testator. This can create legal disputes and drag both the family and the executor into a long-term issue. 

Due to the potential for financial and legal complications in the settlement of an estate, it is advisable, though not required, for the executor to be an individual who is experienced in legal and financial matters. This experience can help the executor avoid mistakes that a less-experienced individual may make.

Bottom Line

If you are looking to establish an executor to your estate, you will need a trusts & estates attorney to help you craft your last will and testament. An experienced trusts & estates attorney can preserve your intentions and wishes through a carefully constructed will. 

 

Additionally, a well-crafted will designed by a trusts & estates attorney can limit the power of an executor, clearly establish the division of assets among beneficiaries, and ensure that the wishes of the testator are preserved.

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