It's both an honor and a burden to serve as someone's executor. An executor is entrusted with responsibility for winding up someone's earthly affairs—a big or little task, depending on the situation. Essentially, an executor is charged with protecting a deceased person's property until all debts and taxes have been paid, and seeing that what's left is transferred to the people who are entitled to it.
What Is an Executor?
The executor (called a personal representative in some states) is the person named in a will or appointed by a court to wind up the person's financial affairs after death. Basically, that means taking care of property, paying bills and taxes, and seeing to it that assets are transferred to their new rightful owners. If probate court proceedings are required, as they often are, the executor must handle them or hire a lawyer to do it. (For more on probate, see Nolo's Probate FAQ.)
What Does the Executor of a Will Do?
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Executors have a number of duties, depending on the complexity of the deceased person's financial and family circumstances. Typically, an executor must:
- Find the deceased person's assets and manage them until they are distributed to inheritors. This may involve deciding whether to sell real estate or securities owned by the deceased person.
- Decide whether or not probate court proceedings are needed. Most jointly owned assets pass to the surviving owner, without probate. And if the deceased person's property is worth less than a certain amount (how much depends on state law), it may be able to go through a streamlined probate process. (To learn more about probate, see Probate FAQ.)
- Figure out who inherits property. If the deceased person left a will, the executor will read it to determine who gets what. If there's no will, the person in charge (sometimes called the administrator) will have to look at state law (called "intestate succession" statutes) to find out who the deceased person's heirs are.
- File the will (if any) in the local probate court. Generally, this step is required by law, even if no probate proceeding will be necessary. To learn more about this process, see Nolo's article Finding and Filing the Will.
- Handle day-to-day details. This may include terminating leases and credit cards, and notifying banks and government agencies—such as the Social Security Administration, the post office, Medicare, and the Department of Veterans Affairs—of the death.
- Set up an estate bank account. This account will hold money that is owed to the deceased person—for example, paychecks or stock dividends.
- Use estate funds to pay continuing expenses. The executor may need to pay, for example, utility bills, mortgage payments, and homeowner's insurance premiums.
- Pay debts. If there is a probate proceeding, the executor must officially notify creditors of it, following the procedure set out by state law. For help with this process, see Nolo's eForm Notice to Creditor of Death.
- Pay taxes. A final income tax return must be filed, covering the period from the beginning of the tax year to the date of death. State and federal estate tax returns are required only for large estates.
- Supervise the distribution of the deceased person's property. The property will go to the people or organizations named in the will or those entitled to inherit under state law.
The law does not require an executor (also called a personal representative) to be a legal or financial expert, but it does require the highest degree of honesty, impartiality, and diligence. This is called a "fiduciary duty"—the duty to act with scrupulous good faith and honesty on behalf of someone else.
Does the Person Named in a Will as Executor Have to Serve?
No. When it comes time, an executor can accept or decline this responsibility, and someone who agrees to serve can resign at any time. If the will named an alternate executor, that person will take over. If not, the court will appoint someone to step in.
Does an Executor Get Paid?
The main reason most people serve as an executor is to honor the deceased person's request. However, the executor is also entitled to payment. The exact amount is regulated by state law and is affected by factors such as the value of the deceased person's property and what the probate court decides is reasonable under the circumstances. Often, close relatives and close friends (especially those who are inheriting a substantial amount anyway) don't charge the estate for their services.
Must an Executor Hire a Lawyer?
Not always. Doing a good job requires persistence and attention to tedious detail, but not necessarily a law degree. If assets must go through probate court, the process is mainly paperwork. In the vast majority of cases, there are no disputes that require a decision by a judge and the executor may never see the inside of a courtroom. It may even be possible to do everything by mail. (To learn more about the duties of an executor, see Nolo's article What Does an Executor Do?)
An executor can probably handle the paperwork without a lawyer if he or she is the main beneficiary, the deceased person's property consists of common kinds of assets (house, bank accounts, insurance), the will seems straightforward, and good self-help materials are at hand. If, however, the estate has many types of property, significant tax liability, or potential disputes among inheritors, an executor may want some help.
How Can a Lawyer Help an Executor?
Basically, there are two ways for an executor to get help from a lawyer:
- Hire a lawyer to act as a "coach," answering legal questions as they come up. The lawyer might also do some research, look over documents before the executor files them, or prepare an estate tax return.
- Turn the probate over to the lawyer. If the executor just doesn't want to deal with the probate court process, a lawyer can do everything. (The executor is still responsible for making decisions about what to do, though, with the lawyer's advice.) The lawyer will be paid out of the estate. In most states, lawyers charge by the hour ($175-$300 is common) or charge a lump sum, but in a few places, including Arkansas, California, Delaware, Hawaii, Iowa, Missouri, Montana, and Wyoming, state law authorizes the lawyer to take a certain percentage of the gross value of the deceased person's estate, unless the executor makes a written agreement calling for less. An executor can probably find a competent lawyer who will agree to a lower fee.
Can an Executor Get Help From Someone Besides a Lawyer?
Yes. Here are some other sources of information and assistance.
- The court. Probate court clerks commonly answer basic questions about court procedure, but they staunchly avoid saying anything that could possibly be construed as "legal advice." Some courts, however, have lawyers on staff who look over probate documents, point out errors in the papers, and explain how to fix them.
- Other professionals. For certain tasks, an executor may be better off hiring an accountant or appraiser than a lawyer. For example, a CPA may be a big help on estate tax matters.
- Nonlawyer document preparers. Many lawyers delegate probate paperwork to paralegals. Now, in some areas of the country, experienced paralegals have set up shop to help people directly with probate paperwork. These people don't offer legal advice, they just prepare documents as the executor instructs them and file them with the court. To find one, an executor can look online or in the Yellow Pages under "Legal Document Preparation" or "Attorney Services." The executor should hire someone only if that person has substantial experience in this field and provides good references.
- Books. The Executor's Guide, by Mary Randolph (Nolo), guides executors through the process of winding up a loved one's estate, step by step.
To learn about these duties in more detail, and get step-by-step advice on how to wrap up an estate, read The Executor's Guide: Settling a Loved One's Estate or Trust, by Mary Randolph (Nolo). And to see everything Nolo has to offer when it comes to estates, executors, and probate, visit our Wills, Trusts & Probate Center.