Since your Personal Representative is given access to all property in the probate estate, the selection of a competent and trustworthy person is very important. It is wise to nominate someone who has business experience, intelligence, and the utmost integrity and honesty to serve as your Personal Representative. Your nomination of Personal Representative, (along with Alternatives who are asked to serve in the event that the prior nominee is unwilling or unable to act), should appear in your Will. This is your chance to tell the court whom you think is best to do this job for you.
Most jurisdictions require the Personal Representative to post a surety bond covering their actions. This requirement can be waived if your Will states that you want your nominated Personal Representative to serve without bond.
1. What is an Executor?
Answer: The Personal Representative of your estate (also commonly referred to as an administrator or executor) is responsible to gather and inventory all of your property at the time of your death, determine all your outstanding debts, pay all of your legitimate debts and then distribute the remaining property in accordance with the instructions provided in your Will.
The Personal Representative is appointed as part of the probate proceeding and has the responsibility for guiding your property through the proceeding, subject to established probate rules and procedures. In many areas, the court has a considerable amount of control over the activities of the Personal Representative, and prior permission of the court is required for the Personal Representative to take action with respect to property in the probate estate.
2. What are the responsibilities of the executor?
Answer: Some of the general responsibilities of the executor in taking charge of the assets of the deceased are paying the debts and distributing the assets to the beneficiaries. This list is not intended to be complete but does indicate the type of issues. Your lawyer will provide you with a complete list.
Ensure that all the real property is protected, including arranging of necessary fire insurance on buildings and changing locks to protect assets.
Locate safely deposit boxes and the keys.
Choose a lawyer who has extensive experience in Wills and Estates work. Pick an accountant to assist you if your lawyer suggests this is appropriate. Discuss the lawyers and accountants fees and disbursements right up front.
Locate all life insurance policies and notify the insurance company of the death and forward a copy of the death certificate to have the policy paid to the beneficiary. Notify all insurance companies, including house insurance, and car insurance of the death.
Ensure that all insurance is maintained.
Make a list of all assets, including stocks, bonds, pension funds, bank accounts, government investments, superannuation payments, holiday pay from work, work related life insurance or benefits for the spouse, etc.
Are there any interests in partnerships or companies and locate shareholders and partnership agreements and provide a copy to the lawyer for his examination. (there may be triggering clauses in those agreements that must be met quickly)
Locate the previous several year’s income tax returns and provide copies to the lawyer or tax accountant. These must be reviewed quickly to ensure that no filing dates are missed. Government tax authorities do not care that the person is deceased. The executor may be personally liable for any tax penalties that are incurred because filing dates are missed.
Pay the account of the funeral director. Your lawyer will tell you the priority of paying debts, but normally the funeral directors account is to be paid before most other debts.
Make a list of all debts. This could include accounts for charge cards, house utilities, property tax arrears, income tax arrears, loan payments, outstanding leases, mortgages on house or vehicles, and alimony or prior separation agreement. You will need to advertise for creditors in the local newspaper to ensure that all the debts are known and paid. Provide this list and supporting documentation to the lawyer.
Once all the assets have been located and the debts paid (including the account of the executor) then the estate will be disbursed in accordance with law and the terms of the Will.
Your lawyer will advise whether any court proceeding is required regarding the Will. This is called filing for Probate. Often if there is adequate tax advice at an earlier date, the requirement for Probate can be avoided. This will save the estate considerable money.
You will need to notify the beneficiaries about their bequest, and provided there is money left after the payment of all debts, the beneficiaries will receive their money or assets from the Executor of the estate.
You may need to open up a Bank Account in the name of the Estate at your local bank using an official copy of the Will (or Probate if required) together with a copy of the death certificate. Use a checking account that you receive the checks back so you can verify that you paid the funds if required at a later date.
3. Does the executor have to serve?
Answer: No, it is your choice to serve or decline to serve. If you choose to serve as Personal Representative (Executor) you can later resign, although you may have to provide an “accounting” for the period you served. If you decline to serve, or resign after serving, the alternate Executor named in the Will typically is then appointed by the probate court.
If no alternate is named in the Will, or the named alternates die or are unwilling to serve, or a person dies without a Will, the probate court will appoint someone to serve.
4. Who can be appointed an Executor of my Will?
Answer: Probably the most important qualification for an Executor is to ensure that the person that you select be blessed with common sense and a sense of fairness in following through with the obligations that he/she has under the Will.
As some jurisdictions have residency qualifications for the Executor, you may wish to ensure that you select people who reside in the state where you live.
If you have made provision that the Executor is to make payments to the Trustees for any minor children or grandchildren, then this obligation may continue for many years. As these are on-going obligations under the trust provisions in the Will make sure that the executors are not too elderly. You do not want the Executors to die before the estate is administered and closed.
The naming of an Executor under the Will does not mean that the nominated person must act. This person may decline. To protect the estate, make sure that you have a back-up Executor named in the Will. Typically, wording is as follows: “In the event that John Smith neglects or refuses to act as my Executor then I nominate John Adams as my Executor.” There is no magic in the wording as long as the intent is clear.
Often an accountant, financial advisor, or lawyer is also nominated as a second executor. This joint executor ensures that there is a solid degree of competence and experience which is especially important if there are substantial assets involved or Trusts to be administered.
5. Does the executor get paid?
Answer: Yes. In addition to all out-of-pocket expenses in managing and settling the estate, Personal Representatives (executors) generally earn a fee of about 2% of the probate estate for their work.
All fees and reimbursed expenses are subject to court approval. The court, in cases of unusually difficult or extraordinary circumstances, may allow additional fees. On the other hand, if a Personal Representative is derelict in duty, the court may reduce or deny compensation, and the Personal Representative may be held responsible for any damages they caused.