Will Executors

An Executor is an individual named in a Decedent’s Last Will and Testament, 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 Executor or legally represent the Decedent’s estate, unless and until the Will is admitted to Probate (by filing a Petition for Probate with the Court), and until the court appoints the named executor to act as such. The appointment is official only when the Court issues a document known as “LETTERS TESTAMENTARY” or simply “LETTERS” which officially appoint the named Executor to act. Without the “Letters” the Executor cannot act on behalf of the estate (cannot speak with banks, mortgage companies, gain access to accounts, transact on behalf of a decedent’s business, sell the decedent’s real property, collect receivables, etc.).

Therefore, getting appointed by the Court is the first step a named Executor must take. A named Executor will generally bring the Will (which nominates him or her for the job) to a Probate Attorney, and will work with the attorney to prepare and file a Petition for Probate, obtain a hearing date, publish notice in a newspaper about the Estate administration, oftentimes obtain and file a Bond with the court, before the court will hear the case, approve the Probate Petition, issue and Order appointing the Executor, and only after such Order is issued will the Letters Testamentary be certified and issued to the Executor.

The date the Letters Testamentary are issued is a very important date – because it starts the running of many deadlines, including that of any creditors’ ability to file a claim against the Estate (known as “the creditors’ period).

Once the Executor has formally been appointed and Letters Testamentary have been issued by the Court, a number of Duties and Liabilities are imposed on this individual. In fact, one of the documents which an Executor must file with the Court is known as “Duties and Liabilities of the Personal Representative” which the Executor signs, acknowledging that he or she has full knowledge, understanding and commitment to abide by the duties, and is fully aware of all the liabilities which the position places on him or her.

As such, the role of the Executor is a very important and responsible one. He or she literally steps in the shoes of the Decedent, and is 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 accounts, lease or sell Estate property, pay last illness and funeral expenses, debts and obligations, and in short – settle the Estate, and ultimately – apply for a Decree of Distribution directing how the remaining estate assets are to be distributed, before the estate can be closed.

Depending on what assets comprise the Decedent’s estate, this process can take anywhere from 9 to 16 months, or longer.  Some major milestones that the Executor is responsible for, are: 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 process (or selling real property), winding up or selling a Decedent’s business, filing personal and estate income tax returns, and ensuring that all (federal and state) taxes are paid, and ultimately – filing a Final Account and Report with the Court describing all that has been accomplished during the administration, what assets are on hand for distribution, and seeking a proposed final distribution. The Court will finally issue an Order on Distribution, which the Executor must follow to deliver the Estate assets to its intended beneficiaries, and file Receipts on Distribution, before he or she can be “discharged from duty” by the Court. In the event of litigation (such as a Will contest), the Executor is the Estate’s legal representative in court defending against such legal claims. If that were the case, the length of the Estate Administration is usually much, much greater before final distribution can occur.

Executors occupy a fiduciary position and have a number of duties not only to the Court and the Estate Beneficiaries, but also to the Estate’s creditors, government agencies, including Tax authorities, etc., to faithfully execute their duties. For that reason, they are often required to file a Bond to protect the interests of all such parties. Oftentimes when the Decedent owned real property in other States, the Executor is charged with the duty to cause the Decedent’s Will to be admitted in such other States, and to conduct an “Ancillary Probate” in that other State, in order to collect such real property.

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