An executor, also called a “personal representative”, is a person who is legally responsible for settling the affairs of a deceased person.
When someone dies, even if there is a last will and testament, property isn’t automatically transferred to the new owners, and debts aren’t automatically paid. It all happens manually through the probate process (sometimes simply referred to as “probate”), which is a legal process that takes place in a local probate court in the county where the deceased person lived.
What does an executor do?
An executor manages the probate process. During the process, the deceased person’s financial and other obligations are settled, and property is formally transferred to whomever is entitled to receive it. Someone has to manually do all of these things (under the supervision of the probate court ). That someone is the executor. In order to do the job (for example, to access bank accounts and pay debts), a person must have legal authority (otherwise he’d be turned away at the bank). This authority comes from being an executor.
Appointing an executor
Only a probate court can appoint an executor. Even if there is a will naming an executor, the court must accept the will and then formally appoint the executor.
In order to be appointed as executor, someone must “open the estate” of the deceased person in the local probate court and ask to be appointed as executor. Usually, the person named as the executor in the will (if there is one) does this work. If there isn’t a will naming an executor, family members will agree on someone who should do it. If family members cannot agree, the probate court will decide who has priority based on state law.
Becoming an executor
Opening an estate requires submitting to the local probate court a package of paperwork including a death certificate, the original last will and testament (if there is one), and several legal filings, including a request to be formally appointed as the executor.
Because the probate process requires a lot of interacting with the probate court and filing many legal documents, the executor often seeks professional help from an attorney (called a “probate attorney”). Some states even require the executor be represented by a probate attorney. A probate attorney drafts paperwork, answers legal questions, and gives the executor legal advice as needed throughout the probate process.
Once the estate is opened, the executor’s duties involve the following:
Gathering Estate Assets
Once the executor is appointed, he or she must gather the all of the deceased person’s assets — everything from real estate to personal property. (Note that certain kinds of assets, like proceeds from from insurance policies, may not be a part of this process, as they will be paid directly from the insurance company to beneficiaries.)
Once the estate’s assets are identified and gathered, they will usually be valued by an accountant, so that the value of entire estate can be determined. The accountant’s work will be filed with the probate court.
Paying Estate Debts and Settling Open Matters
Before any of the estate’s assets can be distributed, the deceased person’s debts (now estate debts) must be paid, and other open matters must be settled.
Paying debts is a manual process, where the executor is simply paying off regular bills (like utility and credit card bills) and closing accounts. The executor must also file income tax returns and pay income taxes and federal estate taxes (if applicable).
In addition, the executor must close out other matters. For example, if the deceased person was collecting social security benefits, the executor would notify the United States Social Security Administration of the death so that payments are stopped. The same would apply for other any other benefits.
Distributing Estate Assets
Once the estate’s debts are settled, it’s time to distribute assets. The probate court will determine who is entitled to what. If there is a will, the will controls. If there isn’t a will, the court will follow state law and determine which family members are entitled to what property (this is called “intestate succession”).
From there, the executor will distribute assets according to the court’s instructions. This can include all kinds of steps, like writing checks, handing over the keys to a home, or selling the home and distributing proceeds.
Serving as an executor
As you can see, serving as an executor involves a lot of administrative work. (Some states refer to the executor as the “administrator” of the deceased person’s estate.) Nevertheless, an executor doesn’t have to be an attorney or financial expert. It just needs to be someone who’s responsible and who can work well with a probate attorney to manage the long and demanding probate process.
In addition, there are some legal restrictions. State law generally limits who can serve, because executors have a lot of responsibility, and access to the deceased person’s property. In most states, an executor must be over 18 and cannot be a convicted felon. Some states also require the executor to be a resident of the state.
Appointing my executor
Choosing an executor is an important part of estate planning. It’s a personal decision. Your executor should be someone who’s trustworthy, organized, and who will have the free time to manage the cumbersome probate process. Many people choose their spouses or a particularly responsible close family member.
If you do not name an executor in your will, your local probate court will choose one for you based on state law.
An executor is someone who settles the affairs of a deceased person through the probate process. Being an executor gives someone the legal authority they need to access the deceased person’s property. Only a probate court can appoint an executor, and the court will make its decision based on the deceased person’s will (if there is a will), or based on state law if family members cannot agree (if there is not a will). Serving as executor is a lot of work, and it should be done by someone who’s organized and trustworthy. Choosing your executor is an important part of estate planning. Most people choose a close family member.