If someone dies with a will, the will should appoint an executor. The executor is the personal representative of the person who died. Since the person who wrote the will has passed, she can no longer manage her assets and debts. What this means is that the executor is in charge of:
The executor is nominated by a 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.
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.
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 if these assets are controlled by the estate, but the executor 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 substantial estate, a federal estate tax return should be filed.
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.
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.
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.
If you were recently appointed as the executor of a will it is likely you have many questions about how to handle probate. We are here to help. We understand that the estate administration process can be difficult and confusing. We can help make sense of it. Give estate attorney John Crow a call today at his Clarksville or Hopkinsville office for assistance with your duties as executor.
[1] There are exceptions to this rule. For example, your medical power of estate planning attorney has the authority to order an autopsy or determine your tombstone heading, absent any other instruction.
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I was referred to John by a fellow real estate investor when I needed guidance on structuring a couple of LLCs. From the start, he made the process incredibly smooth and straightforward. John was consistently responsive, thorough in his explanations, and showed a genuine commitment to getting everything completed on time—even working late to accommodate my schedule while I was operating from Hawaii, several time zones away. His mix of professionalism, attention to detail, and approachable demeanor made the entire experience seamless. I’m grateful to have him as a resource and wouldn’t hesitate to recommend him to anyone looking for a reliable and knowledgeable attorney.
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This firm has done several things for me and real estate clients. Most recently setting up a TIST (Tennessee Investment Services Trust). And redoing my Will, Medical Power of Attorney, and Healthcare Directive. Appreciated their understanding of all of the intricacies of each document. Their timely communication and prompt service.
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