our Aunt Sheila dies, having named you executor of her will. The term itself seems intimidating. "Executor" brings to mind weighty legal matters, endless financial details, and family squabbles about the terms of the will--if you believe what you see in television murder mysteries. In real life, being an executor often isn't terribly complicated or troublesome.
What does an executor do? He or she carries out the wishes of the deceased, as expressed in the will. (Technically, a woman is an executrix; some states use the term personal representative instead of executor.) The executor handles all the procedures needed to validate and administer the will (the probate process) and manages the person's property after death, including locating assets, paying bills and taxes, and distributing what's left to heirs. A family member, friend, business associate, financial institution, or trust company could be candidates to serve as executor of a will.
If you're nominated, you can accept or decline the job. While generally not too overwhelming, the position carries important responsibilities and demands attention to detail. Accept only if you're truly up to the task.
If you accept, you'll need to appear, will in hand, in probate court or your state's equivalent to be named executor officially. "You will then, and only then, have authority to act," points out Theodore Hughes, assistant attorney general for the state of Michigan and co-author with David Klein of "The Executor's Handbook" (ISBN 0-8160-2940-7).
| You'll need to appear,
will in hand,
in probate court
to be named
|First things first|
The executor's first duty is to read the will and note anything needing immediate action. Are minor children left orphaned? The executor must check the will for designated guardians, and then go to probate court to put the guardianships into effect quickly. Did the deceased donate anatomical gifts to science? Those gifts must be taken care of within a few hours, or they'll be of no value.
Are there disposable assets needing immediate protection? "Lock the house, make sure the insurance on it is continued, and make sure nobody uses the car," Hughes advises. "If someone drives around in the deceased's car and has an accident, the estate would be liable in the event there isn't enough liability coverage."
Other executor's tasks aren't so urgent, but still must be attended to in due time. You'll need to inventory the deceased's assets and find out what debts the estate owes. Then you can determine what type of probate proceedings are called for: small-estate probate, formal probate, or no probate at all. "Small-estate probate proceedings may be sufficient," Hughes explains. "Or maybe no probate is needed at all because everything is jointly owned or in a revocable living trust, or the only asset is life insurance proceeds."
Most states now have a small-estate probate option, which is available for estates with relatively small dollar values. Thus, Hughes advises against rushing into formal probate. Even if there appear to be assets solely owned by the deceased that would require formal probate, explore small-estate probate to find out if the estate qualifies. This will vary by state. "The executor shouldn't inadvertently throw the whole thing into formal probate administration," Hughes points out. "That can bring substantial expenses and delays."
One of the most common errors executors make is to pay bequests too soon, notes Alexander Bove, a Boston attorney and author of "The Complete Book of Wills and Estates" (ISBN 0-8050-1464-0). "If you pay bequests too early," Bove points out, "and then don't have enough left to pay debts and taxes, you would be responsible out of your own pocket"--unless you can persuade beneficiaries to give back some money.
Missing tax deadlines is another pitfall. As executor, you’re personally responsible for meeting those deadlines even if you hire someone to handle the taxes. Besides income taxes, you must pay federal estate tax on estates valued at more than $600,000. That minimum climbs to $625,000 in 1998; it continues to rise incrementally until it hits $1 million in 2006.
"If it's a complicated estate," Bove says, "you'll almost never make a distribution of assets until you get an approval of the tax return from the Internal Revenue Service (IRS) or the state. [Otherwise] the IRS might come back to you and say they don't agree with a property valuation or a deduction, so they want you to send in another $25,000. If you don't have the money, you're in trouble."
Another common mistake is not discovering all the debts. An executor has to be thorough and organized in the search. Sloppy records and lost bills could leave some debts unpaid. Later, if unpaid debts surface and you've already doled out all the money to heirs, you’ll be personally responsible for money owed.
One protection you have is that every state now requires creditors to make claims against an estate within one year after death. After that, their claims are barred. You're not off the hook if the creditor sends a bill in the proper time frame and you neglect to pay.
| One of the most
is to pay bequests
|Hire help if you need it|
Do all these duties and responsibilities seem daunting? They can be. For your time and trouble, you can receive a fee from the estate. The rate varies by state. If you're also an heir, however, it's wiser to forego the fee to boost your inherited amount. The fee is taxable income; the inheritance is not.
Remember, too, that an executor never has to go it alone. When you need professional advice, you can hire someone, such as an attorney or financial consultant, and use estate funds to pay for it. Be sure any adviser you hire has experience with estate settlement.
Can you ever completely do it yourself? Sometimes, if the estate is simple enough. In any case, remember you're personally liable for mistakes. Professional help can protect against that, "even if it's a question of sitting down for an hour with somebody," Bove advises, "and having them lay out what you need to do."
Consider the following:
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