Learn About the Responsibilities and Duties of a Will Executor
An Executor is an individual who is named in a Decedent's Will and who is merely nominated to be the person administering the decedent's Estate. An Executor is named/nominated in a Will, but they cannot perform the duties of an Executor or legally represent the decedent's Estate, until the Will is admitted to Probate, and until the court appoints the named Executor to act as such.
This process is started by the filing of a Petition for Probate. The Executor's appointment is official only when the court issues a document known as “Letters Testamentary,” or simply, “Letters.”
Therefore, getting appointed by the court is the first step a named Executor must take, before they can act on behalf of a Will or an Estate.
When the Decedent does not leave a Will (and thus, there is no named “Executor”) the court will appoint an Estate Representative, known as Administrator, or Personal Representative. This is the equivalent of a Will Executor.
Oftentimes, where there is no Will, the Personal Representative needs to file a Bond before the court would appoint him or her to serve. The cost of posting bond varies depending on the size of the estate, and is often in the thousands of dollars, payable each year the Estate is undergoing Probate. When an Estate Representative is qualified for a Bond, the cost of Bond would also depend on the credit-worthiness of the individual Estate Representative him/herself.
Whether the Estate Representative is called an Executor or an Administrator, he or she can only represent the Estate after the court issues the aforementioned “LETTERS” - which are most often conditioned on the posting of Bond (for Estates with no Will).
Without the Letters, the Executor (or Administrator) cannot act on behalf of the decedent's Estate. This means that they cannot interact with banks or mortgage companies, gain access to bank accounts, transact on behalf of a decedent's business, sell the decedent's real property, collect receivables, deal with estate creditors, etc.
What Happens After the Letters Testamentary Are Issued?
The date the Letters are issued is a very important date, because it starts the clock on many deadlines, including that of any creditors' ability to file a claim against the Estate.
Once the Estate Representative has formally been appointed and Letters have been issued by the court, a number of duties and liabilities are imposed on him or her. In fact, one of the documents which an Estate Representative must file with the court is called “Duties and Liabilities of the Personal Representative,” which the Estate Representative signs, acknowledging that he or she has full knowledge, understanding, and commitment to abide by such duties, and is fully aware of all the liabilities which the position places on him or her.
As such, the role of the Estate Representative is a very important and responsible one. They are now able to:
- Perform on the decedent's contracts
- Notify and pay the Estate creditors
- Notify certain government agencies about the court process
- Access decedent's bank accounts
- Rent or sell Estate real property
- Pay a mortgage or pay off a reverse mortgage
- Pay last illness and funeral expenses, debts, and obligations
In short, the Estate Representative is able to settle the Estate and ultimately apply for a Decree of Ddistribution, directing how the remaining Estate assets are to be distributed to the Estate heirs (or Will beneficiaries) before the Estate can be closed and the administration - terminated by the Court. Notably, the Estate Representative remains liable and responsible to the Court until their duties are fulfilled, and the court formally Discharges them from the position of Estate Representative.
Depending on what assets comprise the decedent's Estate, this process can take anywhere from thirteen to sixteen months, or longer.
Responsibilities of the Estate Representative
Some major milestones that the Estate Representative is responsible for, include:
- Notifying and paying all Estate creditors
- Preparing and filing with the court an Inventory of the Estate
- Maintaining the Estate property income-producing throughout the Probate administration
- Winding up or selling a decedent's business
- Filing personal and Estate income tax returns
- Renting, Refinancing, or Selling real property
- Filing documents with the County Assessor regarding property tax reassessment (or applicable exclusions)
The Estate Representative is also responsible for filing a final Accounting with the court describing all that has been accomplished during the Probate administration and what assets are on hand for distribution. Upon a hearing and an approval of such Final Account and Report, the court will issue an Order directing the distribution of the Estate, which the Estate Representative must follow to deliver the Estate assets to its intended Beneficiaries or heirs at law, and file their signed Receipts on Distribution with the court, before the court can “Discharge” the Estate Representative from his or her duties and close the case.
In the event of litigation (such as a Will contest), it is the Estate Representative's duty to defend the Estate in court against such legal claims. If litigation erupts, the length of the Estate administration is usually much, much longer before final distribution can occur.
Fiduciary Duties of the Estate Representative
The Estate Representative occupies the position of a Fiduciary and has a number of duties not only to the Court and the Beneficiaries/heirs, but also to the Estate's creditors and government agencies (including tax authorities, etc.).
Call the Law Offices of Maria N. Jonsson, PC Today!
If you have been named Executor in a Will and need assistance with admitting the Will to Probate, the Law Offices of Maria N. Jonsson, PC can help. Call to schedule your consultation. With over twenty years of experience in Probate, you can count on compassionate and efficient representation in Probate court.