When you make Nolo’s Online Will, you should name an executor to wrap up your estate. After your death, that person will have legal responsibility for safe guarding and handling your property, seeing that debts and taxes are paid and distributing what is left to your beneficiaries as your will directs.
Some states use the term “personal representative” instead of “executor,” but it means the same thing. If you live in one of these states, you will see the term “personal representative” in your will.
Serving as an executor can be fairly easy, or it can require a good deal of time and patience—depending on the amount of property involved and the complexity of the plans for it.
Your executor will have a number of duties, most of which do not require special expertise and can usually be accomplished without outside help. An executor typically must:
In addition to the tasks listed above, the executor will usually also have to:
For these tasks, some executors are more comfortable hiring an outside professional, who can be paid out of the estate's assets. This may be a lawyer to initiate and handle the probate process or an accountant to prepare the necessary tax forms. But because of simplified court procedures and adequate self-help law materials, even these tasks can sometimes be accomplished without outside assistance.
For help with the task of educating your executor, your will prints out with documents titled Letter to Executor and Letter to Alternate Executor, which you can give to those you name to serve. These documents offer guidance on the executor’s duties.
Ideally, your executor will agree to take on the job before you name him or her in your will. Some people are uncomfortable initiating the discussion, however giving your executor a letter about an executor’s duties might help start the conversation. Many people also find this a handy way to help educate themselves and their executor; and to help open up a discussion about your final wishes.
For a complete guide to an executor’s duties and details about how to wrap up an estate, see The Executor’s Guide: Settling a Loved One’s Estate or Trust, by Mary Randolph (Nolo).
Note for Texas Residents: Independent Administration. Like many states, Texas offers a simplified probate process. In the Lone Star State, it’s called “independent administration” and it gives an executor broad powers to act without supervision of the probate court. For example, an independent executor can pay final bills and distribute property without the court’s oversight. Unlike other states, Texas requires a will to contain a bit of special language to request this simplified process. That’s why Nolo’s Online will refers to your executor as your “independent executor” and includes the required language that permits the independent administration of your estate. (Tex. Est. Code Ann. § 401.001.) We’ve designed your will to request independent administration because it saves money and speeds up probate. If you want your executor to work under the close supervision of a court, see an experienced estate planning attorney for advice.
Sometimes, a probate court asks an executor to post a bond—an insurance policy that protects beneficiaries if the executor is dishonest or incompetent. Some probate courts require bonds for all executors, while others only require bonds for out-of-state executors. However, many courts won’t demand a bond if the will says that no bond is required.
Nolo’s Online Will expressly states that no bond is necessary. As long as you choose an executor you trust, there’s no reason to require your executor to post a bond. Furthermore, the cost of the bond— usually about 10% of its face amount—comes out of your estate, so your beneficiaries receive less than they would if no bond was purchased. If you’re less than confident about your executor’s competence or you feel that the extra insurance of a bond is worth the cost, see an experienced estate planning attorney who can draft your will to require your executor to post a bond.
The laws of every state provide that an executor may be paid out of the estate. Depending on your state law, this payment may be:
An executor who either stands to get a large portion of the estate or is a close family relative commonly does the work without being paid. Some will makers opt to leave their executors a specific bequest of money in appreciation for serving.
Nolo’s Online Will does not explicitly state whether your executor will be paid. Instead, your document will say that your executor has all of the powers that your state allows—and this includes the power to pay him- or herself for the work of settling your affairs. So it will be up to your executor to decide whether or not he or she will be paid. This allows your executor to make a decision about this based on the actual circumstances—for example, how much time and effort it takes to settle your estate and whether the estate has enough money to pay the executor. If you would prefer your will to include an explicit payment clause, see a lawyer for help.
Outside experts will almost always be paid out of the estate. The amount experts—including lawyers—are paid is totally under the control of the executor. However, a few states set out fees that may be charged by lawyers and other professionals—usually a percentage of the value of the estate.
Beware of lawyers’ fees: Lawyers commonly imply that the fee allowed by statute is the fee that they are required to charge for their services. In fact, lawyers are perfectly free to charge by the hour or to set a flat fee that is unrelated to the size of the estate. One of the most important tasks that your executor can perform is to negotiate a reasonable fee with any lawyer he or she may pick to help probate your estate. Be sure you explain this to your choice for executor.
Learn more about Naming an Executor in your will.