What is an Executor?
If someone dies with a will, that will should appoint an executor. The executor is the personal representative of the person who died. What this means is that the executor is in charge of handling that person's affairs, administering the estate, and distributing the person's assets to the beneficiaries named in the will. The executor is nominated by your will, but is officially appointed by the Court. In most circumstances, the executor must obtain Letters Testamentary from the probate court in order to perform most acts. This executor gains these letters through filing a petition with the probate court to be officially appointed.
What are the Duties of an Executor of an Estate?
The executor has numerous duties and responsibilities while serving in this role. Below is a general outline of the things the executor must do to administer the estate.
Gather the Assets of the Deceased and Make an Inventory
The executor should discover and identify what assets the decedent had at her death, how they are titled, and make sure they are secure.
Manage the Assets
The executor has the duty to make the assets of the estate are properly held and maintained. For example, if the estate has real estate, the executor needs to make sure that the real estate is kept in good, safe condition. The executor should also be prepared to open an estate account. This estate account is used to hold the liquid assets of the decedent in order to pay any debts or expenses of the estate and to simply disbursements.
Discover and Identify Creditors
After the death of the decedent, the executor should identify any creditors that are owed money. During the administration of the estate, the executor should generally continue to pay mortgages and car notes, but is not under obligation to pay debts that are unsecured (credit card debts, personal loans, etc.). Any unsecured creditor must file a claim with the probate court in order to be paid.
The executor has a duty to prepare and file the last income tax return of the decedent. That return must be filed by April 15 of the year after the deceased person's death. Note that if the person died early in the year and had not filed her income tax returns for the prior year, it is up to the executor to make sure that the return is filed for the previous year and for the year in which she died. While 99% of Americans currently do not have to pay estate taxes, if the decedent had estate worth $11.2 million or above, a federal estate tax return should be filed.
Distribute the Assets of the Estate
Once all debts, expenses, and taxes have been paid and the requisite time has run, the remaining assets of the estate are ready to be distributed. The executor must follow what the will directs when distributing assets, unless the will specifically authorizes the executor to disburse assets based on his own judgment.
Defend the Estate
If the estate is sued, the executor has a duty to defend the estate. If the decedent was involved in an accident or is sued for breach of contract, the executor should seek competent legal counsel to ensure that the estate assets are protected. Additionally, if an heir of the estate contests the will, the executor must be a proponent for the estate and the validity of the will.
Can an Executor Be Removed?
When an executor is appointed by the Court they must sign an oath stating that they understand their responsibilities and will perform their duties to the best of their ability. If an executor does not do what they are required, they can be removed from office.
Reasons Why an Executor Will be Removed:
- Uses the assets of the estate for personal use
- Misuses or mismanages the estate property
- Does not follow a court order
- Physically or mentally is unable to serve
- Has been convicted of a felony
- Fails to adequately account for the estate assets
If an executor is removed from office, the backup executor will be appointed. Should the backup executor be unable or unwilling to serve, then the probate court will appoint an administrator to manage the estate.
Who Should You Name as Executor of Your Will?
Most people typically name a close family member or friend to serve as executor. A close family member of the deceased generally is more familiar with the assets of the decedent and knows her wishes. This choice is best for most individuals. However, sometimes naming a family member as executor can create resentment among other family members who may not have the best relationship with that person. For example, if you are in a second marriage and name your spouse as executor over your estate to the exclusion of your son or daughter from prior relationship, that situation may cause resentment. Of course, you could always name co-executors, but generally we advise you only name co-executors if you are confident that the co-executors will have a good working relationship. Otherwise, a neutral executor such as a bank, trust company, or a lawyer may be the best option. Be aware that if you do name a bank or lawyer, they will likely charge a fee for their services. Consequently, you should carefully consider who you want to be your executor, especially if there is a possibility of conflict in the family.
What is the Difference Between Power of Attorney and an Executor?
A person appointed as your agent under your power of attorney acts on your behalf while you are alive. Your agent can make financial and medical decisions for you while you are alive, but generally at your death the power given to the agent is extinguished and no longer valid. By contrast, your executor is appointed by the Court after your death through the probate process. Your executor is provided authority by the Court to act on the deceased person's behalf to pay bills and manage the general affairs of the estate.
Reach Out To Estate Attorney John Crow For Help
If you were recently appointed as the executor of a will it is likely you have many questions about what to do. We are here to help. We understand that the probate process can be difficult and confusing and we can help make sense of it all. Give estate attorney John Crow today at his Clarksville office for assistance with your duties as executor.
 There are exceptions to this rule. For example, your medical power of attorney has the authority to order an autopsy or determine your tombstone heading, absent any other instruction.