When most people think about decisions made during the creation of a Last Will and Testament they focus on decisions relating to the distribution of estate assets. There is another decision, however, that is made when you create your Will that has a significant impact on the success of your overall estate plan – the appointment of an Executor. Unfortunately, most people spend very little time contemplating the position of Executor. Instead, they simply appoint a spouse, adult child, or sibling to be the Executor of their estate without stopping to consider whether the individual is actually the best person for the job or not. One reason people make this mistake is because they do not fully understand the duties and responsibilities of an Executor. If you are creating, or updating, your estate plan in the near future, do not make this common mistake. Take the time you need and ask yourself “Who should I appoint as the Executor of my estate?”
What Is an Executor?
When an individual dies, the individual’s estate must generally pass through the legal process known as probate. Someone must oversee the probate of the estate. If the decedent left behind a Last Will and Testament, the person named as the Executor in the decedent’s Will is the person who will oversee the probate process. When a decedent dies intestate, or without a valid Will in place, someone must volunteer to be the Personal Representative of the estate and will serve basically the same function as the Executor.
What Are the Duties and Responsibilities of an Executor?
The duties and responsibilities of an Executor begin immediately after the death of the Testator of the Last Will and Testament. Typically, the Executor of the Will is in possession of an original copy of the decedent’s Will. If so, the law in most states requires anyone in possession of a decedent’s Will to submit the Will to the appropriate court for probate within a short period of time after being notified of the death. Therefore, the Executor’s first duty is to submit the Will, along with a certified copy of the death certificate, to the appropriate probate court.
The Executor is then responsible for identifying, locating, and securing all estate assets. Those assets may include both real and personal property as well as both tangible and intangible assets. Securing those assets may include anything from locking up a vacation house to closing an investment account. The court also requires a date of death value for all estate assets. Sometimes this requires the Executor to retain the services of a professional appraiser.
The Executor will need to decide which estate assets are probate assets and which are non-probate assets. Non-probate assets pass to the designated beneficiary outside of the probate process. Common examples of non-probate assets include property held in a trust, proceeds of a life insurance policy, and certain types of jointly held property. Once the estate assets have been evaluated, the Executor must decide if the estate requires formal probate or qualifies for an alternative to formal probate.
If the estate requires formal probate, the Executor must file the petition to open probate along with any supporting documents. Creditors of the estate must also be notified that probate is underway. Known creditors can be notified personally; however, unknown creditors must be notified by publication in a local newspaper. Claims filed are then reviewed by the Executor and approved claims paid out of estate assets.
In the event someone challenges the Will by filing a Will contest, the Executor has a legal obligation to defend the Will admitted to probate. Assuming the Will is not declared to be invalid, the Executor must then calculate and pay any state and/or federal estate taxes due on the estate. If sufficient liquid assets are not available to cover the tax obligation, estate assets must be sold by the Executor and the profits used to pay the tax bill. Finally, the Executor must prepare any legal documents necessary to effectuate the legal transfer or the remaining estate assets to their new owners.
Now that you have a better understanding of the numerous duties and responsibilities an Executor has, you will hopefully take the time to choose your Executor wisely.
If you have additional questions or concerns regarding the Executor of your Will, contact the experienced Illinois estate planning attorneys at Hedecker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.