If you have been named the executor of an estate, your first question is probably: “What does an executor of an estate do?”
As an executor or administrator, your primary responsibility is to the estate beneficiaries, as you are a fiduciary charged with representing their best interests. While you generally can exercise a great deal of power when making estate-related decisions, you are not entitled to stray from the provisions of a decedent’s will (or from intestate succession laws if the decedent died without a will).
Administrator/executor of will duties fall under three broad categories:
- Marshaling (i.e., collecting) the decedent’s assets;
- Notifying and paying creditors; and
- Distributing the decedent’s assets to heirs and beneficiaries.
Administrator/executor responsibilities might be extensive, but they do not have to be complicated, especially if you obtain the help of experienced professionals, such as probate lawyers and CPAs, to complete the necessary estate administration tasks.
Keep reading to learn more about navigating the role of an executor/administrator.
What Is an Executor of a Will?
Who is the executor of a will? An executor of an estate is the person or entity appointed by the creator of a will (called the testator) to carry out the provisions of their will.
The executor is a fiduciary, which means that every action they take on behalf of the decedent’s estate must be in the best interests of the beneficiaries of the estate and only them.
To avoid executor problems with beneficiaries and fiduciary misconduct claims, executors generally should not:
- Place their personal interests over those of the beneficiaries
- Misappropriate or misuse estate assets, including borrowing from the estate
- Favor one beneficiary over another
- Pay themselves for completing the tasks of an executor of a will without court approval for the portion of the probate fees relating to their compensation
- Fail to keep beneficiaries reasonably informed
- Be negligent with their executor of a will duties
- Sell estate property for less than fair market value
Suppose an executor is not communicating with beneficiaries about important estate-related decisions. If beneficiaries proceed to bring a breach of duty claim against them, and the beneficiaries win, the executor could be held liable for paying damages from their own pockets for their executor misconduct. This is why many executors hire a skilled probate attorney to assist them with their executor of estate duties.
What Is an Administrator of the Estate?
If you’re curious about how to become administrator of an estate, you should know that the process is not that different from the process for becoming executor; the only difference is that the court usually will appoint an executor based on who the decedent nominated to serve as executor in their will, whereas the court will appoint an administrator based on the order of priority specified in California Probate Code section 8461.
There are several reasons why an estate may have an administrator instead of an executor. For example, the court may appoint an administrator if someone dies without a will. An administrator might also be appointed if the executor named in the will refuses their appointment, resigns or is removed from their role as executor of the estate, and the court selects someone not designated as an executor in the decedent’s will to serve.
Who can administer the estate of a decedent? When appointing an administrator, the court gives preference to the decedent’s surviving spouse or registered domestic partner, then their children, grandchildren, and other close relatives. If the decedent does not have any surviving relatives, the court may appoint a county official known as the Public Administrator or one of the decedent’s creditors to assume administrator responsibilities.
The duties of an administrator are virtually the same as the duties of the executor of a last will and testament; the main difference is that an executor is bound to the terms of a decedent’s will, whereas the administrator, if the decedent died without a valid will, must abide by the laws of intestate succession, which can be found in California Probate Code sections 6400 – 6455.
Is an Administrator/Executor of the Estate the Same as a Trustee of a Trust?
Executors/administrators are not the same as trustees of trusts. While trustee responsibilities are very similar to the executor/administrator responsibilities, trustees preside over trusts, whereas executors/administrators preside over estates.
How does a trust work? When property is held by a trust, it means the property is no longer in the decedent’s name; it is owned by the trust. All the property the decedent had held title to in their name, and that is not being distributed by a trust, transfer-on-death deed or beneficiary designation, belongs to their estate, which is what the executor/administrator is tasked with managing and distributing.
Trustees tend to have a little more discretion when making decisions about a trust than executors/administrators have when making decisions about an estate. For example, a trustee may be able to temporarily withhold due and payable trust fund distributions for certain reasons, but an executor/administrator generally wouldn’t have this right.
Additionally, unless there is a legal dispute requiring court intervention, trusts can generally be administered privately, while formal probates require substantial court oversight. Ultimately, a trustee or executor/administrator’s authority will be determined by the terms of the trust or will instrument, respectively.
Executor of Will Duties
What are the duties of an executor of a will? What does an executor have to do when someone dies?
An executor of a will’s duties are extensive, and in order to succeed in the role, diligence, thoroughness and honesty are required. Even a minor misstep on the part of the executor can result in damage to the estate and personal liability for the executor. Executors can prevent missteps by seeking the assistance of a qualified lawyer to help them fulfill their executor responsibilities.
What Should an Executor of a Will Do First?
An executor of a will’s responsibilities begin once the testator dies. First, they will need to track down the decedent’s original will, lodge the original will with the court, and file a petition for probate. If there is no will or a will cannot be found, any interested party (i.e., a party with a property right in the estate, such as the surviving spouse, an heir or creditor) can file the petition for probate.
Once the court has set a date and time for the initial probate proceeding, the petitioning party must send notification to all interested parties so they can attend the initial hearing if they wish. Additionally, they must arrange for publication of notice of administration of the decedent’s estate in a newspaper in regular circulation within the city where the decedent resided. At the initial hearing, the court will determine whether the decedent’s will (if one was found) is valid and can be admitted to probate, and whether the executor or administrator named in the petition for probate can be formally appointed as personal representative.
Unless an interested party files an objection to the probate petition or appears in court to object to it, the court generally will appoint the executor named in the will; the court, however, is permitted to deny appointment if it believes the executor nominee is ineligible or unfit to act or if an interested party successfully disputes the appointment.
It is important to note that the personal representative is not authorized to access estate assets or take any actions related to the estate before being formally appointed to their role.
What Are an Executor of a Will’s Responsibilities During Administration?
Once you’ve formally been appointed to the role of executor, you will have some tasks you will want to take care of as soon as possible.
Initial tasks of an executor of a will include:
- Taking possession of estate property and safeguarding it (e.g., securing real property, locking up estate valuables in a safe)
- Obtaining certified copies of the decedent’s death certificate
- Making funeral arrangements for the decedent
- Collecting the decedent’s mail
- Determining who the estate beneficiaries and heirs are and notifying them about estate administration
- Collecting the decedent’s applicable death benefits and transfer-on-death/payable-on-death assets (e.g., Social Security death and survivor benefits, annuities, bank accounts, life insurance policies)
- Canceling the decedent’s subscriptions and credit cards
- Notifying both the Franchise Tax Board and Social Security Administration about the decedent’s death
In order for the executor to properly fulfill their duties, they must be able to accurately interpret and understand the decedent’s will. It is not uncommon for a will to be outdated (e.g., it names a former spouse) or to contain ambiguous terms, which can cause confusion about who the true beneficiaries are. If an executor is having trouble interpreting a will, it is recommended they seek the help of a lawyer, who can file a Petition for Instructions with the court for further clarification if needed.
The administrative duties of an executor of a will are:
- Notifying beneficiaries, heirs and other interested parties about estate administration
- Marshaling, managing and creating an inventory of estate assets
- Paying the decedent’s taxes and debts
- Keeping beneficiaries informed about estate-related decisions
- Providing estate accountings to interested parties
- Litigating claims on behalf of the estate
- Making timely distributions of estate assets to beneficiaries
We discuss each of these executor of estate duties in depth in the following subsections.
Notifying Beneficiaries, Heirs, Other Interested Parties and Creditors About Estate Administration
Beneficiaries and heirs cannot effectively enforce their inheritance rights or contest a will unless they are provided timely notice that they have an interest in an estate. To contest a will, a person needs to have a financial stake in the outcome of the contest and the will document must meet one or more of the grounds for contesting a will.
Executors are also required to notify any reasonably ascertainable creditors of the decedent’s death so they can enforce their creditor rights by filing a timely creditor’s claim against the estate for the decedent’s outstanding debts. If an executor fails to notify creditors of the decedent’s death, and the court allows a creditor who was not timely notified to file a late claim, administration could be prolonged. Additionally, executors could be held personally liable if they knowingly failed to give a creditor notice and their creditor’s rights were impaired as a result.
Marshaling, Managing and Creating an Inventory of Estate Assets
At the start of administration, the executor needs to determine which of the decedent’s assets belong to the estate and marshal them. Once the assets have been gathered, the executor must create an inventory of estate assets. Generally, the court will appoint a probate referee whose job it is to formally appraise all non-cash assets to determine their approximate value at the time of the decedent’s death.
If any estate assets require management (e.g., investments, businesses, rental properties), the executor is also responsible for ensuring these assets are preserved until they can be distributed. This executor of will duty can entail everything from collecting rent from tenants residing in estate properties to overseeing the decedent’s investments.
Paying the Decedent’s Taxes and Debts
A decedent’s taxes and debts must be paid before estate administration can be brought to a close. Common creditors include credit card companies, funeral homes, medical organizations and parties to lawsuits involving the decedent.
Creditors must file creditor claims within the later of four (4) months from the appointment of an executor or sixty (60) days from receipt of a notice of administration of estate. California law also provides for creditors to have one year from the date of the decedent’s death to file a legal action against the estate to enforce their creditors’ claims. Being that creditors cannot file a claim after a year and some executors wait close to a year to open probate, creditors often opt to open probate themselves to ensure their claim is not time-barred.
Once the personal representative receives a creditor’s claim, they can choose either to pay it or reject it in full or in part based on its validity. For example, an executor might reject a claim if they have evidence to show the debt in question had already been satisfied or that the claim is barred by an applicable statute of limitations.
If the personal representative rejects the claim, the creditor can either forgo the claim or file a legal action on their claim with the court to try to obtain a judgment against the estate, which, if granted, would require the estate to satisfy the debt.
Keeping Beneficiaries Informed About Estate-Related Decisions
As part of their fiduciary duties, executors are responsible for keeping beneficiaries reasonably informed about estate administration. Executors should use their best judgment in determining what is “reasonable.” If, for example, the executor is seeking to sell real property belonging to the estate, they generally will be required to notify beneficiaries of the proposed sale and perhaps even obtain the court’s approval.
In the initial probate proceeding, the court will grant the personal representative either limited or full authority to administer the estate. Those with limited authority will need prior court approval before selling the estate’s real property assets. Those with full authority can take broad action on behalf of the estate without notifying beneficiaries first, but with certain sweeping actions, such as selling real property, they will need to provide beneficiaries with notice at least 15 days in advance.
Regardless of the authority a personal representative has been granted, they should make it a point to discuss important decisions with beneficiaries to prevent estate disputes from arising.
Read more about the ways an executor can and cannot override a beneficiary.
Providing Accountings to Interested Parties
One of the primary executor of estate duties is to provide beneficiaries with an accounting of their acts as executors. Accountings should include any assets on hand at the beginning of estate administration, a summary of all assets that have entered or left the estate during administration, a summary of all gains and losses, and a summary of all property remaining on hand at the close of administration.
Due to the executor’s accounting obligations, it would be in the best interest of the executor to maintain thorough and up-to-date financial records at all times.
If beneficiaries find estate accountings to be incorrect or to contain red flags that point to executor misconduct, they are entitled to challenge the accountings in court. They can, likewise, file a petition to compel the executor to provide an accounting if the executor has failed to do so.
Litigating Claims on Behalf of the Estate
If a claim needs to be brought on behalf of the estate against a third party, beneficiary or heir, it is generally the executor’s responsibility to bring the claim. Similarly, if the estate needs to be defended against a claim, that responsibility generally falls on the executor.
Let us illustrate with an example. Suppose that the executor discovers evidence of elder financial abuse that had been perpetrated against the decedent by a third-party scammer, which resulted in the decedent losing substantial assets that otherwise would have been distributed as part of the estate. If a claim is to be brought against the third-party scammer to try to recover the stolen funds and damages, that duty will fall to the executor. The executor would have the same obligation to represent the estate if a third party were to sue the estate.
Making Timely Distributions of Estate Assets
The last step in the administration of an estate is to file a petition to close the estate and make distributions to beneficiaries in accordance with the terms of the will. This means that once a decedent’s debts are settled, all their property is accounted for, and all litigation surrounding the estate has ceased, the personal representative should proceed with petitioning the court for final distribution of estate assets. If their petition is approved, they can proceed with making accurate and timely distributions of the remaining assets to beneficiaries.
If an executor fails to make timely distributions, beneficiaries have a right to petition the court to compel the executor to make them.
FAQs About Executor of Will Duties
Can an executor of a will assign duties?
While executors cannot formally assign or delegate their fiduciary duties, they do have the authority to seek the assistance of others, including third-party professionals, to complete administration tasks, so long as the services to be provided will benefit to the estate. What’s more, if the estate is sufficiently funded, executors can typically use estate funds to cover the costs of these professionals.
While simple or small estates may not require the executor to assign duties, complex estates are a different story. Even career executors often hire professionals to help with their executor of will duties to protect themselves against personal liability.
What is the role of an executor in a will contest?
It is not always wise for executors to involve themselves in will contests, particularly if the contest is between beneficiaries, as their involvement could be seen as a violation of their duty of impartiality.
That said, there are circumstances in which it may be appropriate for the executor to contest or defend a will. For example, if the executor finds evidence that a beneficiary had applied undue influence on the decedent to make the decedent execute a codicil that disproportionately favored them, it would be appropriate for the executor to bring a contest, since they would be doing so for the benefit of the beneficiaries as a whole. In the same vein, it may be appropriate for an executor to defend a disinherited heir’s will contest if there is no evidence to suggest the will is invalid.
If the executor is also a beneficiary of the estate, the executor may have standing to bring a will contest in their capacity as a beneficiary. However, if you are an executor who is also a beneficiary, you will want to tread carefully, as you should not take any actions that would benefit you over the other beneficiaries.
It’s also worth noting that when an executor has been appointed under a prior will admitted to probate, they have standing to contest the admission of a subsequent will to probate.
Because of the complexities involved in an executor contesting a will, it is best for executors to consult with a lawyer before bringing a contest.
Can an executor be sued for failing to fulfill their executor responsibilities?
Yes. If beneficiaries have evidence to show the executor is either not fulfilling their duties, being negligent with their duties or engaging in executor misconduct, they have every right to sue the executor to compel the executor to satisfy their obligations, suspend or remove the executor, and/or possibly even surcharge them.
Still confused about what the executor of a will does? Our attorneys can guide you.
What is the job of an executor of a will? If you have questions about what to do when you are the executor of a will, you have come to the right place.
Keystone attorneys work exclusively in the litigation and administration of estates and trusts, so they are more than qualified to not only answer your questions, but also to provide you with the assistance you need to seamlessly and efficiently administer an estate. Learn how we can help lighten your load and protect you against liability by requesting a free consultation. Call us today!
