An Executor's Legal Duties
Serving as the executor of a loved one’s estate is a serious responsibility. It requires careful organization and attention to legal requirements. An executor has a fiduciary duty to act in the best interests of the estate and its beneficiaries. They can face legal liability if they fail to meet this duty, such as when they act in their own interests or allow the assets in the estate to decay. Moreover, you likely want to make sure that your loved one’s wishes are respected and carried out. This section discusses the steps that you will need to take to carry out your duties as an executor effectively and efficiently.
1. Finding and Organizing Documents
An executor is responsible for finding and organizing all the necessary documents to manage and probate the estate. First, the executor should obtain an official copy of the death certificate. Another important document is the will, if there is one. The original will is best, although the executor should also hold on to any copies of the will as well as any older versions. The will’s terms will give the executor a better sense of the estate and the beneficiaries. Finally, the executor should search for any other documents that detail the property that the decedent owned and the status of their estate. These documents will help the executor manage the estate and distribute the assets.
2. Filing the Will With the Probate Court
Most states require that a will be filed within a certain amount of time after death or discovery. The deadline varies by state, but anyone in possession of a will usually has about 10 to 30 days to file it. The probate court will likely require that the filed will be the original, so the executor should make copies before filing. It is not necessary to file a petition for probate with the will, since the executor may need more time to determine whether a probate case is even necessary or whether the estate qualifies for certain small estate procedures. However, filing the will is likely required by state law, even if the estate will not pass through probate.
3. Notifying Interested Parties and Agencies of the Death
An executor should ensure that a decedent’s loved ones are notified of their death in a timely manner. Executors have a duty to keep beneficiaries and heirs reasonably informed of the status of the estate. Even if an executor has not yet decided whether to open a probate case, they should let beneficiaries and heirs know of their current plans and update them if those plans change. Clear and frequent communication may allay concerns and avert future objections or litigation.
In addition to beneficiaries and heirs, the executor must notify other entities of the decedent’s death in order to protect the estate’s financial interests and obligations. For example, an executor may need to contact the decedent’s landlord to negotiate payment and lease termination if the decedent rented their home. They may also need to contact entities such as the Social Security Administration, the post office, and the Department of Motor Vehicles.
4. Claiming Benefits During Probate
The family members of a decedent may face certain financial burdens in the aftermath of the death. Fortunately, they may be able to rely on sources such as life insurance, annuities, and Social Security benefits to offset many of these costs. Family members also may have access to any unpaid wages or other employment benefits that were due to their loved one when they died. An executor may not need to handle the process of claiming benefits but may help beneficiaries and heirs navigate it.
5. Taking Inventory and Valuing Assets in the Estate
An executor is responsible for taking inventory and valuing the assets in an estate so that they can properly distribute those assets. The executor should organize a worksheet that lists all assets and their value. The finalized inventory may be filed with the probate court, and many probate courts offer inventory worksheets. In order to value the assets, an executor may hire professionals such as appraisers, especially if the assets are complex. The inventory and valuation should also include any debts of the estate.
6. Determining Ownership of Assets in the Estate
The ownership of assets in the estate will help an executor determine whether probate is necessary. If the decedent owned property with another person in joint tenancy or tenancy by the entirety, or as community property with right of survivorship, that property will pass to the surviving co-owner without the need for probate. Some property not specifically held as community property with right of survivorship may still be transferred outside probate or with simplified procedures, depending on the circumstances. Property such as trust property, retirement accounts, and life insurance proceeds may also transfer to its new owners without the need for probate.
7. Deciding Whether Probate Is Necessary
If the value of the estate’s property is relatively modest, or if most of it will pass without probate, the estate may be eligible for small estate procedures or informal probate. If all of an estate’s property qualifies for transfer outside probate, a probate case will not be necessary. Small estate procedures or avoiding probate altogether can save the estate money and the executor time.
This may also be a good time for an executor to decide whether a probate lawyer would be helpful. Probate lawyers are typically the most helpful when an estate is large or complex, or when probate litigation is likely. If ancillary probate is necessary because the decedent owned certain property that will pass through probate in a second state, a probate lawyer familiar with the laws of the second state may be helpful. Additionally, the courthouse may offer low-cost legal resources, and staff lawyers or court clerks may be able to answer procedural questions and review documents.
8. Filing a Petition With Probate Court
If probate is necessary, the executor may file a petition for probate. A probate petition usually includes an application to be appointed as the executor, the death certificate, and the original will. The petitioner must ask the court to appoint an executor, even if the executor is already named in the will. Some states allow certain other interested parties in addition to the executor named in the will to file a probate petition. Once the court approves the probate petition, it will open the probate case.
9. Notifying Interested Parties of the Probate Case
After the probate case is opened, the executor will be responsible for notifying all beneficiaries, heirs, and creditors of the probate case. The process for notification may vary by state, but the executor will likely be required to file proof of notification with the probate court. If the executor cannot find or identify certain beneficiaries or heirs, they may need to follow a specific search process. The executor may be allowed to notify creditors of the probate case at a different time than beneficiaries and heirs. Once creditors are notified of the case, the court will issue a deadline for creditor claims.
10. Proving the Will
The executor will be tasked with proving the will after opening the probate case. A will must be proven valid before a probate court will allow the distribution of assets according to its terms. A valid will is broadly a will that is in writing, signed by a testator with capacity, and witnessed. Some states may accept unwitnessed wills ("holographic wills") with additional evidence. A probate court may also accept a copy of the will if the original cannot be found and if there is other evidence of the will’s validity.
11. Managing Assets in the Estate
During the probate process, the executor is responsible for managing the estate’s assets and preventing those assets from suffering avoidable damage or depreciation. The executor has a fiduciary duty to always act in the best interest of the estate. In order to effectively manage the estate, the executor will probably need to open an estate bank account, take measures to secure and maintain real estate and other property, and make investment decisions. Managing the estate may also involve selling assets, collecting debts, or transferring assets to beneficiaries early. If the decedent had a trust, the executor may need to coordinate with the trustee. The executor should keep written records of all the actions taken to manage the estate. The executor may also be required to periodically produce documents known as "accountings" that track the financial activity of the estate.
12. Transferring Property Outside Probate
Many types of assets can pass to their new owners outside probate. One of the most common examples is property held in a living trust. This also may be true of real estate held in certain forms of ownership, such as joint tenancy or tenancy by the entirety. Many types of accounts have named beneficiaries who can collect the contents of the accounts directly. These may include payable-on-death bank accounts, as well as life insurance and retirement plans. If the estate’s remaining assets fall below a certain threshold value, the estate may qualify as a small estate, and assets may be distributed without going through formal probate.
Transferring any property should be done only once the executor is certain that the estate can pay all of its legitimate debts and taxes. However, if there is no question that the estate has enough funds, some property may be transferred outside probate fairly quickly.
13. Paying Debts and Taxes From the Estate
An executor must pay any legitimate debts held by the decedent or the estate, including taxes. However, if it seems that the estate may not have enough money to pay its debts, an executor should seek the advice of a probate attorney or ask the probate court for guidance regarding which debts take priority. Certain assets may be shielded from an estate’s creditors by state law. If a probate case is open, creditors will have only a limited amount of time to make claims against the estate or to dispute an executor’s rejection of a claim.
14. Distributing Estate Assets and Closing the Estate
Once the deadline for creditor claims has passed, the estate has paid all legitimate debts, tax returns have been filed, and any disputes have been settled, the executor may be ready to formally close the estate. Before closing a probate case, an executor will likely be required to file certain documents with the court. These will include a final accounting in which the executor details the activity on the assets of the estate, payment of the estate’s debts, and the plan for distributing assets to beneficiaries and heirs. If the court approves the distribution plan, the executor may distribute all of the estate’s assets, file proof with the court, and ask that the court formally close the probate case. Once the probate case is closed, the executor’s job is done.
