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An executor is the person responsible for managing the administration of a deceased individual's estate. Although the time and effort involved will vary with the size of the estate, even if you are the executor of a small estate you will have important duties that must be performed correctly or you may be liable to the estate or the beneficiaries.

Life Care Planning, Estate Protection, Disability,
VA & Medicaid Assistance Lawyers

What is Required of an Executor?

 

Being the executor of an estate is not a task to take lightly. An executor is the person responsible for managing the administration of a deceased individual's estate. Although the time and effort involved will vary with the size of the estate, even if you are the executor of a small estate you will have important duties that must be performed correctly or you may be liable to the estate or the beneficiaries.

 

The executor is either named in the will or, if there is no will, appointed by the court. You do not have to accept the position of executor even if you are named in the will.

The administration of an estate generally takes at least one year, though you won't need to work full time on it.  Following are some of the duties you may have to perform as executor:

 

●          Locate documents. If there is a will, but you don't know where the will is located or the will hasn't already been filed with the Circuit Clerk, you may need to find it among the deceased's belongings. If all you have is a copy of the will, you may need to get the original from the lawyer who drafted it.  You also will need to a copy of the death certificate, which generally is obtained from the funeral home.

 

●          Hire an attorney. You are not required to hire an attorney, but mistakes can cost you money.  You may be personally liable if something goes wrong with the estate or taxes are not paid on time.  An attorney can help you make sure all the proper steps are taken and deadlines met.

 

●          Apply for probate. If there is a will, the court will grant you letters testamentary. If there is no will, you will receive letters of administration. These letters will officially begin your work as the executor (or administrator, if there is no will).

 

●          Notify interested parties. Notify the beneficiaries of the will, if there is a will, as well as any potential heirs (such as children, siblings, or parents who may or may not be named in a will). In addition, you will have to place an advertisement for potential creditors in a newspaper published in the county in which the deceased lived.

 

●          Secure the decedent's property.  One of the executor's jobs is to protect the property from loss, so you will need to assure the property is kept safe.  Notify phone and utility companies.  Cancel the decedent's credit cards.

 

●          Manage the deceased's property. You will need to prepare a list of the deceased's assets and liabilities, and you may need to collect any property in the hands of other people. You may need to hire an appraiser to find out how much any property is worth.  In addition, if the estate includes a business or farm, you may have to make sure the business or farm continues to run.

 

●          Pay valid claims by creditors. Once the creditors are determined, you will need to pay the deceased's debts from the estate's funds.  The executor is not personally liable for deceased's debts. The estate must pay valid according to a certain priority set by statute.  The funeral expenses, statutory custodial claims, probate and the costs of administrating the estate must be paid first.  Taxes and other claims must be paid in strict compliance with the order specified by statute. If someone files a claim that you believe is not valid, you will need to file an objection to the claim.

 

●          File tax returns. You need to make sure the tax forms are filed within the time frame set under the law. Taxes will include income taxes, as well as any estate tax that may be due.

 

●          Distribute the assets to the beneficiaries. Once the creditors' claims are clear, the executor is responsible for making sure the beneficiaries get what they are entitled to under the will or, if there is no will, under as set forth in the Probate Act. You may be required to sell property in order to fulfill legacies in a will.  In addition, you may have to set up any trusts required by the will; for example, a special needs trust for a disabled grandchild.

 

●          Keep accurate records. It is very important to keep accurate records of everything you do. You will need to create a final accounting, which the beneficiaries must review before the distribution of the estate can be finalized. The accounting should include any distributions and expenses, as well as any income earned by the estate, since the date of the decedent's death.

 

●          File the final report with the court.  Once the final accounting is approved by the beneficiaries, you will need to file a final report with the court.  If every is in order has been dealt with in strict compliance with the law, the court will close the estate.

 

All this can be a lot of work.  However, an executor (or administrator) is entitled to reasonable compensation, subject to approval by the court.  Keep in mind that the compensation is counted as income, so you will need to declare it on your income tax return.

 

Finally, the above is only a "bare-bones" list.  You may, and probably will, need to do a lot more - particularly, if you do not hire an attorney to guide you through the probate process.  To find a qualified attorney to assist you, look in your local yellow page phone directory.  Alternately, call my staff and they will refer you to an attorney in your local area.

 

Richard Habiger is an elder law and special needs planning attorney.  You may contact him at 618-549-4529 or Richard@HabigerElderLaw.com.