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Executors and Administrators
Those who are designated by the terms of a will or appointed by a court of probate to manage the assets and liabilities of the estate of the deceased.
When a person dies leaving property, that property, called an estate, is usually settled or administered under the supervision of Special Courts. Depending on the state, such courts are called probate, surrogate, or orphans' courts. They are typically county courts with jurisdiction and powers defined by state laws.
States require court supervision for the settlement of estates for a number of reasons. Courts ensure that the assets of an estate will be properly collected, preserved, and assessed; that all relevant debts of the deceased and taxes will be paid; and that remaining assets will be distributed to the heirs according to the provisions of the will or applicable laws.
The duty of settling and distributing the estate of a decedent (one who has died) is assigned to personal representatives of the decedent. A Personal Representative may be an executor (male or female) or executrix (female), or administrator (male or female) or administratrix (female). An executor or executrix is the person named in a will to administer the estate. An administrator or administratrix is a person appointed by the court to administer the estate of someone who died without a will.
Executors and administrators act as officers of the court because they derive their authority from court appointments. They are also considered the fiduciaries, or trusted representatives, of the deceased. As such, they have an absolute duty to properly administer the estate solely for its beneficiaries.
Probate is the process by which the court establishes that a will is valid. The first step in the probate process is to file the will in the appropriate court with a petition to admit it to probate and to grant letters testamentary to the person designated as executor of the will. Letters testamentary are the formal instruments of authority and appointment given to an executor by the probate court, empowering that person to act as an executor.
Liability Considerations for Executors and Administrators
Your Aunt Lillian has just called to ask if you will serve as executor for her estate after her death. You are honored that she has considered you for this important responsibility, but you also know that there are risks associated with becoming an executor or administrator.
The most potentially damaging risk is liability for actions undertaken on behalf of the estate. The estate's beneficiaries, who are likely your relatives, may sue you if any of the following situations occur:
- You fail to properly secure and insure the assets of the estate, and it suffers a loss as a result.
- You diminish the estate through imprudent investments or inadequate record keeping.
- You fail to pay taxes on the estate, in which case you may be personally liable for interest and penalties.
- You sell an asset of the estate without authority to do so.
- You delay settlement of the estate unnecessarily or are tardy in executing important transactions.
- You engage in actions that constitute a conflict of interest.
- You improperly delegate decisions to others who have no legal authority over the estate.
- You approve a coexecutor's or coadministrator's breach of duty.
Fortunately, you can usually avoid these problems by taking a few simple steps:
- Most important of all, stay in touch with the estate's beneficiaries. Keep them informed of your actions and the general condition of the estate.
- Promptly meet all required deadlines.
- Maintain accurate records of all estate transactions and document all decisions made. Keep receipts of distributions made to beneficiaries.
- Obtain the written consent of all beneficiaries when changing estate investments.
- Obtain a court order from the probate court for significant estate transactions. Petition the court if the will is unclear regarding particular items.
- Keep affairs of the estate confidential.
- Avoid conflicts of interest. Do not put your own interests ahead of the interests of the estate's beneficiaries, and do not use assets of the estate for your own gain or profit.
- By using common sense and following these guidelines, you can effectively settle an estate and avoid potential lawsuits.
If an executor is unable or refuses to serve, if there is no will, or if the will is deemed to be inauthentic or invalid, the court appoints an administrator. Letters of Administration are the formal court papers that authorize a person to serve as an administrator of an estate that lacks a valid will.No administrator is needed if a person dies without a will, possesses no assets, and owes no debts. Where a person dies leaving an estate, but there are no known living heirs, the state usually receives the property under the doctrine of Escheat. In such cases, administration is not required, unless debts must be paid from the estate's assets before the state takes its interest.
The administration of a decedent's estate is controlled by statute. The probate court is authorized by statute to determine the fundamental facts essential to the administration of an estate.
As a general rule, the place of the decedent's last legal residence determines which probate court shall have jurisdiction over settlement of the estate.
A person making a will—called a testator— should find out whether his or her choice of executor is willing to serve in that role. This small but sensible courtesy can prevent the spending of needless time and money in administration of the estate. A person named as an executor in a will is free to accept or reject the position within a reasonable time following the testator's death. If it is rejected, the court then must appoint another representative, causing a delay in the settlement of the estate and its final distribution to the heirs, and incurring greater legal fees for the estate.
Many people choose their surviving spouse as executor, since that person usually has the greatest knowledge of their financial affairs as well as the family situation. Some people name several persons to serve as coexecutors, to ensure that the estate will be handled fairly and honestly. Frequently, those making a will choose a professional such as an attorney or trust company to act as a coexecutor and to assist with complex issues of the estate.
It is also prudent for a testator to name an alternative executor to serve in the event the designated executor is unable or refuses to serve. A testator may change an executor as long as the change is recorded properly in the will.
Anyone who is capable of making a will is capable of becoming an executor. Courts can disqualify as executors persons who are legally incompetent or unsuitable. When this occurs, the court appoints either an alternative executor, if the will has named one, or an administrator. A person cannot be disqualified as an executor merely because he or she might inherit part of the estate.
A court usually appoints an administrator when a person dies without leaving a will. In most jurisdictions, courts are required by statute to name the spouse of the decedent as administrator. Where no spouse is involved, administration is usually assigned to the next of kin, such as parents, brothers and sisters, nieces and nephews, or cousins. Special laws, called statutes of Descent and Distribution, determine the next of kin who are entitled to serve as administrators.
Terms of Office
As a general rule, executors and administrators are required to take an oath as prescribed by statute before beginning their duties. The taking of the oath constitutes acceptance of the office.
In some jurisdictions, statutes require the executor or administrator of an estate to file a bond to protect those interested in the estate. The amount of an executor's or administrator's bond will be forfeited if the representative is found to have deliberately mismanaged the estate.
The authority of an executor or administrator terminates only when the estate has been completely administered or the executor dies, resigns, or is suspended or removed. An executor can be removed from office for grounds specified by law, such as mismanagement, waste (abuse or destruction of the property), disloyalty, improper administration, Negligence, or other misconduct in the administration of the estate. A representative can also be removed for failure to file a proper inventory, accounts, or tax returns within the required time; for failure to comply with a court order requiring him or her to furnish a bond; or for bankrupting the estate. The representative should be removed where personal interests conflict with official duties or where there is such enmity between the personal representative and the beneficiaries that it might interfere with proper management of the estate.
The general and primary duties of the administrator or executor are to administer the estate in an orderly and proper manner to the best advantage of all concerned, and to settle and distribute the assets of the estate as quickly and reasonably as is practicable.Executors must submit the will to probate court, then dispose of the estate according to the will. Both executors and administrators must make an inventory and appraisal of the estate, then file that information with the court. Executors and administrators are held liable for the debts and taxes of the estate, as well as any losses resulting from unauthorized or improper investments of estate funds.
Executors and administrators are, as a rule, allowed a reasonable compensation for the services they perform in the administration of a decedent's estate. This right arises from and is controlled by statute, unless the will specifically provides the amount of an executor's compensation. Commissions are the most common form of compensation to executors and administrators.
Plotnick, Charles K., and Stephan R. Leimberg. 2002. How to Settle an Estate: A Manual for Executors and Trustees. 3d ed. New York: Plume.
"So You've Agreed To Be an Executor." 2001. Kiplinger's Retirement Report (September).
Wilson, Douglas D. 2000. Executor & Trustee Survival Guide: How to Settle an Estate and Manage a Trust, What Executors and Trustees are Required to Do, a Blueprint for Managing the Process, Includes Illustrations, Forms, and Checklists. Honolulu: Fiduciary.