Picking An Executor: Part 1

Estate planning is not about dying. It is about attaining the peace of mind that what you want done will get done when you are no longer there to make your wishes known.

In this and the next few blogs, I’ll go through some common estate planning questions and considerations.

WHAT IS AN EXECUTOR?
An executor is a person (or a financial institution) appointed in a valid Will who steps in to make sure that:

  • the deceased’s creditors get paid;
  • the estate’s tax obligations are fulfilled; and
  • the assets of the estate get distributed in accordance with the Will.

An executor is court appointed, and, as such, is an officer of the Court. In fact, the executor is required to sign and file an oath that they will faithfully discharge the duties imposed by law according to the best of their ability[1].

WHAT ARE THE DUTIES OF THE EXECUTOR?
Simply stated executor’s duty is to administer the estate in accordance with the law, and the Will of the deceased. This Includes:

  1. Publishing Notice of the opening of the Estate, the time for Creditors to file Claims; and providing notice to a surviving spouse and of the time in which any action must be taken to set aside a Will, or exercise their statutory rights[2].
  2. Preparing and filing an Inventory of all of the assets of the deceased within 9 months of the opening of the Estate[3].
  3. Selling, mortgaging, or leasing property of the estate, if it is in the best interest of the beneficiaries and/or the creditors of the estate to do so.
  4. Paying the debts of the estate[4], which include any taxes (final income taxes of the deceased, Federal Estate taxes, Inheritance Taxes, and Income taxes of the Estate)[5].  HOWEVER, these liabilities are limited to the amount of the estate itself- the executor is not personally liable for the debts of the estate unless the estate is insolvent and they have paid the debts without court approval[6].
  5. Making a Final Report to the Court [7]which includes:  an accounting of all property included in the estate, and their disbursement; a statement that all taxes have been filed and paid; as well as a statement that all debts and charges have been paid.
  6. Distributing the assets remaining after payment of all debts and taxes to the beneficiaries, in accordance with the Will (Note: often bequests to children are to a trust for the benefit of the child until the child reaches certain ages).
  7. Upon satisfactory proof that the estate has paid taxes, creditors, costs of administration (including fees of the executor, the Attorney for the Estate, and charges by the Court itself), AND properly distributed the remaining assets to the beneficiaries, the executor is “discharged” and relieved of any further obligation[8].

WHO IS COMMONLY CHOSEN TO ACT AS EXECUTOR?
Most of our clients chose a surviving spouse, a relative, or a close friend as Executor (in that order). HOWEVER, if you don’t have a Will the COURT will pick one for you.

If we can help you attain the peace of mind that comes from expressing your post mortem wishes contact us via www.kreamerlaw.com, or at 515-727-0900.

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