From Our “Ask a Question” Mailbag: “My brother named me as the executor in his will. I am not sure that I want to have this job. What Are The Executor’s Duties?”
Probate Attorney Kelly Barse
What Are The Executor’s Duties?
No one can force you to serve as executor. If a Will names you executor, you can renounce. Renounce means “pass; thank you very much.” If you do renounce, the next person named can then serve if they wish. If a successor is not named, the court appoints a successor. If you relinquish, you have not taken on any personal responsibility. Renouncing the executorship is common when an estate has many creditors or faces litigation. Many potential executors, wisely, don’t wish to get involved.
Once you do accept the position, you are a fiduciary. You owe the heirs a fiduciary duty to act to shelter, preserve, and maximize the estate. If you fail, a judge could hold you personally responsible. Further, you must deal with the estate’s creditors. Creditors include any taxes owed. If you distribute the estate funds and fail to pay a valid creditor, the creditor may have a personal claim against you.
What Are The Executor’s Duties?
Gathering and Securing Assets.
The executor’s first duty is to gather and secure the estate’s assets. Finding some assets may not be straightforward. The deceased person may not have left good records. Further, all statements might be email delivered, and the executor may not have the dead person’s email password. Real estate may have squatters, which the executor is obligated to remove. Insurance might lapse, and the executor should secure a new policy. The executor could be personally liable if the uninsured property is damaged.
The executor is free to hire professionals to help with this process. Realtors, accountants, and a Probate Lawyer can all help reduce the executor’s liability by making sure there are no overlooked assets. And those found are safe.
Paying Legitimate Creditors.
All states have rules about what creditor notification. The executor should quickly act to start the statute of limitations. This period is short in some states and long in others. Florida only gives creditors three months while Pennsylvania gives them one year. But the clock doesn’t start until the executor gives proper notice. The Probate Attorney can help make sure the clock starts, so the executor doesn’t mistakenly allow creditors more time.
Getting a Release Before Making Final Distribution.
The Will or another testamentary instrument will dictate who receives the estate. The executor is responsible for maximizing what passes to heirs. But, before releasing the funds, an executor should always insist on a full release. Without such a release, the beneficiary is free to use the money received to file a claim against the executor. And, because the executor was not released, the executor must appear before the judge. The executor should have his or her Probate Attorney draft and get duly signed the necessary releases. The probate rules clearly state that the estate pays this cost, not the executor.
In Conclusion: What Are The Executor’s Duties.
This blog is a short introduction to Executor’s Duties. If you would like to read more, follow this link to my article about Probate and Estate Administration.
If a Will names you executor, let our Probate Lawyers help. Some executors hire us to provide a little advice, while others hire us to do nearly everything. We are happy to help with whatever you need. Unlike some lawyers, we don’t charge a percentage of the estate; we only bill for our time.
To begin, call to speak to one of our Probate Attorneys. By all means, our lawyers are ready to answer your questions. In fact, feel free to contact our office for a free consultation. Ultimately our goal is to make the process as painless as possible!
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