Talk to a top lawyer for free
START HERE

What is an executor of a will?

Wondering what an executor of a will is? Read on for everything you need to know about executors and their responsibilities.

evident Editorial Team
published
December 29, 2022
Last will and testament

As the person responsible for carrying out the terms of a will, the executor has several important duties and powers. From managing the estate's assets to paying the estate's debts and expenses, the executor plays a crucial role in ensuring that the testator's final wishes are respected and carried out.

This article will provide a comprehensive overview of an executor’s role, including what an executor does, who can serve as an executor, and how an executor is appointed.

By understanding the role of the executor, you can be better prepared to handle the responsibilities of this important position.

Key Takeaways

What is an executor of a will?

An executor of a will is the person who is responsible for carrying out the terms of that will after the decedent (the person who created the last will and testament) passes away. 

The executor is appointed by the person who creates the will (also known as the "testator") and is named within the will itself.

The executor's role is to act as the personal representative of the decedent's estate and oversee any court proceedings as the estate goes through the probate process. This can include tasks such as distributing the testator's assets to named beneficiaries, paying any outstanding debts, and managing the testator's estate until it is fully settled. 

The executor plays a crucial role in the probate process, and choosing the right executor is a significant decision in the estate planning process.

What are an executor's responsibilities?

As the person responsible for carrying out the terms of a last will, the executor has a number of important duties and responsibilities.

Here are some of the key tasks that an executor might be responsible for:

An executor's responsibilities include identifying assets, paying outstanding debts, and notifying beneficiaries.
  • Identifying and inventorying the deceased person's assets: This can include physical assets such as real estate, personal property, and financial accounts, as well as intangible assets such as intellectual property or digital assets.
  • Paying the estate debts and expenses: The executor is responsible for paying the estate's debts, if any, or expenses that the testator had at the time of their death, such as mortgages, credit card balances, and medical bills. Estate debts are paid using estate funds.
  • Notifying beneficiaries: Once all debts and expenses have been paid, the executor is responsible for notifying the beneficiaries named in the will and overseeing the distribution of the remaining assets according to the terms of the will.

Other duties of the executor

The executor's job also involves certain procedural steps related to settling the probate estate, including:

  • Obtaining certified copies of the deceased person's death certificate
  • Filing the last will and testament with the probate court
  • Informing government agencies, banks, and similar institutions of the decedent's death
  • Filing the final income tax returns of the decedent

Overall, it is the executor's job to manage the probate estate, which can take several months or even years in some cases. (Note that not all of a person's assets go through probate, as certain non-probate assets, such as trust accounts, may pass directly to other beneficiaries).

Who can serve as an executor?

The probate process is governed by state law, so the qualifications to be an executor depend on where the will is being probated. But many requirements are common across state law, including:

  • Being at least 18 years old: Executors are often responsible for managing valuable assets and making important decisions, and the law generally considers individuals under the age of 18 to be too young to handle these responsibilities.
  • Being of sound mind: The executor must be able to understand the terms of the will and make rational decisions based on those terms. This means that the executor must be mentally competent when appointed to the role and not suffer from any mental health conditions that could impair their ability to make decisions.
  • Being willing and able to serve: The executor must be willing to take on the responsibilities of the role and must be able to devote the necessary time and effort to carrying out the tasks required. People often look to family members to fill this role.

Who should you have as an executor of your will?

You have a right to choose anyone you wish to serve as your executor as long as that person meets the qualifications discussed above. 

This means that the testator can choose a family member, friend, or even a professional executor such as a lawyer or accountant. The important thing is that the chosen person is willing and able to fulfill the duties of the role.

In some cases, the person named as executor in the will may be unable or unwilling to serve in that role. For instance, the executor could pass before the testator.

In these scenarios, the will may include provisions for selecting an alternate executor, or the court may appoint a substitute executor to administer the deceased person's estate.

It is also a good idea to designate a person that lives close to you. This will make it easier for them to make court appearances and oversee the process.

Whenever you decide to get your estate planning documents in order, carefully selecting the right executor, and naming an alternate executor, are crucial steps for all estate planners.

How do I appoint an executor?

To appoint an executor, all you have to do is list their name in your will.

It is often a good idea to name an alternate executor in case your first choice is unable or unwilling to serve as executor. (For instance, if they pass before you or are otherwise unable to fulfill the duties).

Some people choose to appoint multiple people as co-executors in their will, such as if they have multiple children and don't want to choose between them. But note that this can increase the amount of paperwork and even lead to disputes between co-executors if they do not see eye to eye on how to best manage the estate or fulfill the decedent's wishes.

Can the executor of a will be a beneficiary of the decedent's estate?

In some cases, the person named as the executor of a will may also be a beneficiary of the will. This means that they would be responsible for carrying out the testator's final wishes while also designated to receive a share of the estate's assets. 

While this arrangement is not unusual, it can sometimes raise concerns about conflicts of interest or other potential problems.

Potential for conflicts of interest if the executor is also a beneficiary

One of the main concerns with having the same person serve as both the executor and a beneficiary of a will is the potential for conflicts of interest. 

For example, others might worry that the executor may be tempted to prioritize their own interests as a beneficiary when making decisions about how to distribute the estate’s assets.

This could lead to disputes among the beneficiaries or other problems, which could delay the settlement of the estate and cause additional stress and frustration for everyone involved.

Potential for beneficiaries to challenge the executor's actions

If the beneficiaries have concerns about the executor's actions, they have the right to challenge those actions in court. 

For example, if the beneficiaries believe that the executor is not acting in their best interests or is not following the terms of the will, they can ask the court to intervene. In this case, it's important to speak with a probate attorney to determine your rights.

The court may hold a hearing to gather more information and make a decision about how to resolve the situation, which could include removing the executor from the role or taking other action.

The executor must act in the best interests of the beneficiaries

Despite these potential conflicts of interest, the executor has a fiduciary duty to act on behalf of the entire estate, meaning they have the legal responsibility to act in the best interests of the estate and all named beneficiaries, regardless of whether they are also a beneficiary themselves. 

If the executor fails to do this, they may be held accountable by the court and could be removed from the role.

Can my executor be a witness to my will?

Yes, as long as they are not a named beneficiary in your will. 

In most states, your will must be witnessed and signed by two people to be legally valid. The witnesses cannot be named as beneficiaries for the courts to recognize your will as valid.

So, if you want to leave a gift to your executor, you can't ask them to be a witness.

Witnessing requirements vary under state law, however, so it’s important to consult with an estate planning attorney if you have any questions.

What happens if I don’t have an executor?

If you don’t name an executor of your estate, the local probate court will select one for you.

The court will typically ask for any interested volunteers and select one of them. 

When the court names an executor, that person is instead referred to as an "administrator" of the estate, though their role is the same.

Frequently asked questions about executors

Do executors get paid?

Yes, executors are entitled to receive reasonable compensation for their services. 

Typically, the testator can specify in their will how much the executor should be paid. If they do not, state law will govern the executor's compensation.

The amount of compensation will generally depend on the estate's size and complexity.

In some cases, the executor may choose to waive their right to receive compensation for their services. For example, executors are often close family members of the deceased person and may not want to accept payment for their work. Or executors may be asked to waive compensation if the estate is small.

Before the executor can receive any compensation for their services, the probate court must approve the amount of compensation. This is to ensure that the executor is not overpaid and that the assets of the estate are used in the best interests of the beneficiaries. 

Executors may also be compensated for out-of-pocket expenses they incur while fulfilling their duties.

Can the executor of a will take everything?

No, the executor cannot take any of the assets for themselves unless the will specifically allows it. It is the executor's legal responsibility to follow the terms of the will and distribute the estate's assets according to the deceased person's final wishes. 

If the executor breaches their duties and takes assets from the estate they are not entitled to, they may be held accountable by the court. This could result in the executor being removed from the role, being ordered to return any improperly taken assets, and potentially facing other penalties such as fines or even criminal charges.

Do executors need to hire a lawyer?

No, executors are not required to hire a probate lawyer, but an executor may want to hire an attorney in certain circumstances. 

Here are some factors to consider when deciding whether to hire a probate attorney as an executor.

  1. Consider the complexity of the estate

If the estate is relatively small and straightforward, with few assets and no complex legal issues, the executor may be able to handle the task on their own. 

But if the estate is larger and more complex with significant assets or potential legal complications, it may be advisable to enlist an attorney's assistance to help manage the process.

  1. Evaluate the executor's level of experience and comfort with the legal process

If the executor has little or no experience handling legal matters, or if they are unsure about how to carry out their duties as executor, it may be a good idea to hire a probate attorney.

An estate attorney can help the executor understand their legal obligations and responsibilities and provide valuable advice and assistance throughout the probate process.

  1. Consider the potential costs and benefits of hiring a probate attorney

Hiring a lawyer can be expensive, especially if the estate is complex or there are disputes among the beneficiaries. 

On the other hand, a probate attorney can provide valuable expertise and support that can help the executor avoid mistakes and ensure that the estate is settled in a timely and orderly manner. And the benefits of an attorney's assistance may more than make up for any legal fees or the costs of making a mistake when carrying out the executor's duties.

Ultimately, the decision to hire a probate attorney will depend on the specific circumstances of the estate and the executor's level of experience and comfort with the legal process. 

Executor of will vs Power of Attorney

Some people wonder what the difference is between an executor of a will and a power of attorney. While both are personal representatives tasked with acting on a person's behalf, the key differences between the roles are in what they have a legal responsibility to handle and when their position is relevant.

An executor of a will is responsible for managing a deceased person's estate after their passing. This can involve financial responsibilities like paying the estate's debts and distributing assets, but the role only begins after the decedent's death.

A Power of Attorney (POA), meanwhile, is a document that names a personal representative to act on another person's behalf. Different types of POAs can cover things such as healthcare decisions, financial matters, and more, some of which may sound like similar responsibilities as an executor.

But the key difference is that a POA makes these decisions during the other person's lifetime, and their authority does not extend to distributing a person's estate after their passing.