Naming an executor is one of the most important elements of a last will and testament. After all, an executor is the person you entrust to make sure your final wishes are carried out. Understanding exactly what an executor is—and what they’re supposed to do—can help you name the right person for the job.
An executor (sometimes referred to as a personal representative) is the person (or bank or trust company) who is in charge of handling your estate—all of your money and property—after you die.
In your will, you name, or nominate, someone to be your executor. But before your chosen executor can act, he or she must receive authorization from the court as part of the probate process. If you don’t name an executor, the court will appoint someone to act as your executor.
What does an executor do?
“The main tasks of an executor are to gather the estate assets, pay the proper debts, arrange for the filing of any necessary tax returns, and distribute the assets according to the terms of the will,” says Nancy S. Bender-Kelner, an attorney at Bender-Kelner Wills, Trusts & Estates, P.A. in Minnetonka, Minnesota. “But an executor could be called upon to do many other things—sell a business owned by the decedent, defend a will contest, resolve family or other disputes, or oversee the distribution of personal effects.”
Primary duties of an executor include:
- Gathering and safeguarding assets. This could include everything from assembling all of the deceased person’s bank and investment accounts to changing the locks on their house to getting valuables appraised.
- Consulting with a lawyer to determine what court proceedings, if any, need to be initiated
- Serving as the estate’s representative in any court proceedings
- Paying legitimate debts
- Filing any necessary tax returns
- Distributing assets according to the terms of the will (or according to state law, if there is no will)
- Closing the estate
Who should be an executor?
Generally, the job is filled by a family member—often the surviving spouse or an adult child—but it can also be a trusted friend or colleague, or even a lawyer, although that’s less common.
When you’re choosing your executor, the important thing is to select someone you trust to handle all the necessary tasks, says Toni Ann Kruse, a partner at McDermott Will & Emery LLP in New York City. That person doesn’t need to have legal knowledge, or already know how to do everything they’ll have to do. They just need to be someone you trust to figure it all out, she says.
You can also have co-executors, or name a second executor in the event that your first choice is either unable or unwilling to fulfill the duties. It’s entirely possible that your nominated executor could decline the role or resign, which is another smart reason to name an alternate.
“Some people do not care to serve as executor,” Bender-Kelner says. “Although you may think that you are bestowing a great honor on a person, in fact, serving as executor can be a lot of work.”
If you die intestate, or without a will, then a court will appoint an executor. Their role will be essentially the same; the difference is simply that you’ll lose out on the opportunity to have control over who gets to go through the nitty-gritty details of your estate after you’re gone.
I’ve been made an executor. What do I do now?
If you have been named as someone’s executor, you will likely want to seek the guidance of a lawyer with expertise in estate administration to begin the process of administering the estate. (The lawyer who drafted the will won’t automatically be involved in the administration of the will unless you choose.)
Can an executor get paid?
Short answer: Yes. “An executor does have the legal right to be paid,” Bender-Kelner says, but they may not want to be if, for example, the deceased was a close family member or if the executor is the sole beneficiary of the estate.
By Erika Janes
