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An executor oversees the execution of someone’s last will and testament after they pass, following the instructions and fulfilling the wishes of the deceased.
An executor is the person in charge of making sure a person’s last will and testament are followed correctly. Being an executor is a serious job that comes with legal responsibilities. Executors must act in the best interest of the estate and its beneficiaries, and they are responsible for following a significant number of rules, as well as interacting with probate courts, lawyers, and accountants.
The executor is usually chosen by the person who wrote the will. Anyone can be an executor as long as they are over 18 years of age. However, it should be a considered choice. Being an executor is not an easy job. Usually, it falls to a lawyer, accountant, or family member. Not only do executors have to follow the legal obligations involved, but if the executor is a family member, the executor could also potentially be a beneficiary. If there is no will or the will does not specify an executor, a court may appoint someone to handle the proceedings.
With every estate, there are decisions that will need to be made that aren’t explicitly detailed in the will. For example, if it is not possible to split assets evenly between heirs, some assets may need to be sold to make the disbursements fair. How to make these decisions falls to the executor. The executor should consult with all the heirs, of course, and that can lead to differences of opinion. In order to best streamline the process, one person needs to be legally obligated and in charge of following all instructions to the best of his or her ability. This is the primary reason that an executor is appointed. If you are seeking more information or would like help with creating a will or trust, learn more about estate planning.
Not always, but it certainly helps. If the will is well-thought-out and clearly defined, if there are no disagreements among the beneficiaries, and if the process runs smoothly, you may not need to involve a lawyer. However, in complicated cases or if any challenges are filed, a probate lawyer may be necessary. An executor has legal obligations, like paying debts and taxes prior to distributing assets to heirs. If an executor does not follow this protocol, the executor could be personally liable for those amounts. That’s why it’s important to have a lawyer look over the will and help the executor make sure everything is done correctly.
Yes. In fact, this is quite common. If the family does not want to involve outside help, like a lawyer or accountant, a surviving family member will often be named as the executor. There are advantages and disadvantages with taking this path. Usually, the family member is familiar with the assets of the estate. This can make the probate process easier. If other family members are unhappy with how the executor is handling the wishes of the deceased, however, there could be serious family arguments at a difficult time.
Yes. Depending on state law, these payments can be a percentage of the estate’s value, a flat fee, or a simple hourly rate. Sometimes, they will be stated in the will. If the executor is a family member, the fee may be waived. Any expenses that an executor incurs may also be taken out of the estate before the assets are dispersed to heirs. Taxes will be owed on an executor’s fee, so if the executor is also a beneficiary it may be advantageous to waive the fee.
The executor’s job is to manage how a person’s assets will be preserved and distributed after they pass. Not only does the executor have to follow the wishes of the deceased, but he or she also has a fiduciary responsibility to the beneficiaries of the will and may face legal trouble if the job is not done correctly.
While the job of executor will necessarily vary with every will, below are responsibilities executors must handle in most cases. Some estates may require considerable work, while others may be fairly simple.
While acting to fulfill the provisions of the will, an executor will often have to make difficult decisions. A common one is how to handle an asset like a house if there are multiple heirs. Often the asset must be sold, with the proceeds split evenly, so an executor has the power to liquidate assets when necessary. An executor is also responsible for paying any debts and taxes on the estate first, so benefits to heirs are sometimes delayed while this plays out.
An executor, by law, must act in the best interests of the deceased person’s will and the beneficiaries. It’s called fiduciary responsibility. That means if the executor intentionally does anything contrary to the instructions in the will or harms the beneficiaries, the executor may have to answer to a probate court. Some things that an executor cannot do are clearly defined. They include carrying out the provisions of a will before the person passes away, changing provisions in the will, or selling assets for less than they are worth (with the value of the assets established within reason).
In most cases, yes. It is a tricky and sometimes emotional situation, but the executor must act according to the wishes of the deceased person’s will to the best of his or her ability. If an executor’s decisions are reasonable, even if a beneficiary disagrees with them, the courts will usually side with the executor. If they deviate from the will, however, the decisions can be challenged in probate court.
You have a legal right to contest an executor’s work if you believe it is not in accordance with the wishes of the deceased. The misuse of funds or failing to follow explicit instructions are grounds for contesting an executor’s work. Bear in mind, though, that there are often judgment calls in the execution of a will. The best course of action is to discuss the situation with the executor and the other beneficiaries before making a legal challenge.
This article is provided for general informational purposes only. Neither New York Life Insurance Company, nor its agents, provides tax, legal, or accounting advice. Please consult your own tax, legal, or accounting professional before making any decisions.