Executor Responsibilities
At
PartingWishes.com
we have removed the obstacles to writing a Last Will and
Testament. It is convenient, low cost, and simple. The
MyWill™ and MyExpatWill™ services step you through a series of
questions in a "wizard" format. All questions are written in plain
language, so you don't have to be a legal expert to create your own Will.
You simply answer the questions, complete the details, and we automatically and
instantly format a document that forms the basis of a legal Will, custom-made for
your local jurisdiction.
If you are the executor of the Will of a member here at
PartingWishes.com,
you probably have a lot of questions about your responsibilities. Here you will
find a good summary of the steps that must be followed, as well as some
additional information about your responsibilities.
What is an "executor"?
An "executor" is a personal representative who is responsible for
distributing the estate (property, assets, possessions) of an individual
according to the wishes outlined in their Will.
At a high level, what does an executor actually have to do?
There are a number of important responsibilities of an executor, which can be
summarized as follows:
- The executor needs to have access to the Will. (This is one of the
purposes of being a
PartingWishes.com
"Keyholder®" for a member's
MyWill™ and MyExpatWill™ services).
- The executor must review the Will, make sure that nobody else has access
to any of the property, and notify the next of kin and beneficiaries.
- The Will must be "probated". That is, in order to administer the estate
the executor must be able to prove to the world that he or she has the legal
authority to do so.
- The executor is, by default, expected to make funeral arrangements and
pay for funeral expenses out of the estate. (This is one of the purposes of
being a
PartingWishes.com
"Keyholder®" for a member's MyFuneral™ service, so that their funeral wishes can be understood and
respected.)
- The executor must make an inventory of the property in the estate and
the value of the property.
(The MyLifeLocker™ service allows convenient storage
of this property and other personal information that can be passed on to the executor when it is required.)
- The executor has the responsibility of protecting the property of the
estate. They must ensure that all valuables are kept safe and that the
property is fully insured.
- Until the estate is distributed, the executor must keep the money and
investments in the estate properly invested. They must choose low-risk
investments, as beneficiaries could sue the executor for making bad
investments and reducing the value of the estate before it is given to them.
- Once the estate has paid all the debts and taxes, the executor is able
to distribute the property to the beneficiaries.
- Finally, the executor must provide detailed accounts to the
beneficiaries including a detailed list of everything that was received and
paid out by the estate.
Why was I selected as an executor?
Individuals often choose a family member or close friend to be the executor
of their Will. Most commonly it is a spouse or a child. An executor is usually a
person who the individual trusts completely, is diligent and acts with
integrity.
As an executor, can I also be a beneficiary in the Will?
Yes. The executor has a legal responsibility to treat all beneficiaries
fairly under the directions given in the Will. There is nothing preventing an
executor from being a beneficiary of the estate, as long as they are not faced
with a conflict of interest, or there is a danger that they may not treat all
beneficiaries equally. In fact, for a simple distribution of the estate, where
most of the estate is passing to a single beneficiary, it is common for that
beneficiary to also be named as the executor of the Will.
What if I am unwilling or unable to serve as an executor?
If the Will identifies an alternate executor, then they may be able to take
your place. If no alternate has been identified, then someone can be appointed
by the courts to distribute the estate.
Does the executor get paid?
This depends on where the estate is being probated, and where the assets are located.
In the United States and Canada, the executor is typically entitled to a fee as approved
by the court prior to the payment. The level of payment is based on the size and complexity
of the estate, as well as the amount of time and effort demanded of the executor.
However, in the UK, if the executor is not a member of the immediate family,
and not a professional organisation, and is undertaking these responsibilities simply as a
trusted friend, then they are only entitled to recover their expenses. Consequently, it is
sometimes appropriate to leave this person a legacy for undertaking the work.
What does the Will actually contain?
A Will has the following general structure:
- It identifies the person making the Will, otherwise known as the
"testator".
- It revokes (cancels) all previous Wills, to make it clear that this Will
replaces any earlier Wills may have been made.
- It names the personal representative, called the "executor", for the
Will.
- It leaves all of the property to the executor in trust. The executor, as
the trustee of the estate, is given ownership of all of the property in the
estate, but must distribute the property according to the instructions in
the Will.
- It instructs the executor to pay all valid debts, expenses, claims and
taxes on the estate.
- It tells the executor to give the beneficiaries whatever is left in the
estate after the debts, expenses, claims and taxes have been paid.
- It gives the executor certain legal and financial powers to manage the
estate, including the power to keep or sell property in the estate, to
invest cash, and to borrow money.
- It names one or more people who should take custody of any minor
children.
How do I obtain a copy of the Will?
As the executor of the Will, the member may have told you in advance where
the signed, legal copy of their Will is located.
If you are the
PartingWishes.com
"Keyholder®" for the member's
MyFuneral™ service, then you may be able to view
their funeral wishes, which includes a section on the location of their Will.
You do this by logging in as a Keyholder® using the Keyholder® ID supplied by
the member, and selecting the MyFuneral™ service
from the main menu in order to unlock it. After a number of hours or days have
passed, as specified by the member, their funeral wishes can be viewed or
printed by you. One of the first sections of the document describes the
location of the signed, legal copy of the member's Will. If you do not see
the MyFuneral™ service listed in the main menu,
then the member has not provided you with the power to unlock or view their
funeral wishes.
If you are the
PartingWishes.com
"Keyholder®" for a member's
MyWill™ service, then you will be able to view and
print a copy of the member's Will. You do this by logging in as a
Keyholder® using the Keyholder® ID supplied by the member, and selecting the
MyWill™ service from the main menu in order to unlock
it. After a number of hours or days have passed, as specified by the member, the
Will can be viewed or printed by you. If you do not see the
MyWill™ service listed in the main menu, then the
member has not provided you with the power to unlock or view their Will.
If you are the
PartingWishes.com
"Keyholder®" for a member's
MyExpatWill™ service, then you will be able to view and
print a copy of the member's Expatriate Will (which covers assets held in a foreign country). You do this by logging in as a
Keyholder® using the Keyholder® ID supplied by the member, and selecting the
MyExpatWill™ service from the main menu in order to unlock
it. After a number of hours or days have passed, as specified by the member, the Expatriate
Will can be viewed or printed by you. If you do not see the
MyExpatWill™ service listed in the main menu, then the
member has not provided you with the power to unlock or view their Expatriate Will.
More details about obtaining the most recent copy of the Will are provided
below.
What is "probate"?
Probate is the process by which a Will is legally approved by the courts. It
also refers to the required documentation and includes the legal confirmation of
the appointment of the executor of the Will.
Not all Wills have to be probated. It depends on various factors such as the
complexity of the estate, the amount and nature of assets, the number and nature
of beneficiaries, etc. However, in practice most estates end up going through
the probate process.
Executors are encouraged to have the Will probated, because without this
legal confirmation process, many people could become concerned that the Will is
invalid, or possibly signed under duress, or that there may be a more recent
Will. If there is any possibility that the legality of the Will is in question,
or that there could be contention over any statements contained within the Will,
then the Will should be probated.
Exactly what steps must an executor perform?
The executor of a Will must perform the following series of tasks:
- The first obligation of the executor is to
locate and
read
the original of the most recent Will of the deceased. Hopefully, the
"testator" (the individual who wrote the Will) has previously informed the
executor or their family where their Will and other important papers are
kept. If not, then the executor must search all likely places for a valid
Will. If the Will is kept in a safety deposit box, then the executor will
have to take a key, the Death Certificate and personal identification in
order to access the box. The box can be forced open if they do not have a
key. The bank will then draw up an inventory of the contents, and the Will
will be released if the executor can demonstrate that they are indeed the
person with executor responsibilities for the Will.
- The executor should apply for the Death Certificate of the testator,
which can usually be obtained from the Funeral Home director. This usually
takes one to two weeks to receive.
- The executor has the right to determine how to dispose of the deceased's
body. Any funeral wishes expressed by the deceased are not legally binding,
although in practical terms personal wishes are usually respected. If the
deceased has taken time to express their personal wishes through a service
such as the
MyFuneral™ service at
PartingWishes.com, it
will save the family and the executor a great deal of anxiety and grief.
- The executor must notify everybody who has an interest in the estate and
what, if any, is their entitlement described in the Will. If the Will, or
the authority of the executor is challenged, then the executor may have to
provide documentary evidence that they have complied with any legal
requirements.
- A list of assets and liabilities must be drawn up, including their value
at the date of death.
- The executor must secure all assets, either by taking them into his or
her possession, or by taking out a full insurance policy.
- All prospective creditors must be given an opportunity to stake a claim
on the estate. The executor must advertise for anybody who may have a claim
against the estate. Creditors with a valid claim can recover their debt at
any time, even after the estate has been distributed to the beneficiaries.
- The next step is to apply to probate the Will, so that the assets can be
dealt with legally. This may require legal assistance.
- The executor is responsible for filing taxes on behalf of the deceased,
including income taxes and death taxes.
- Once the executor has obtained legal authority to distribute the estate,
they must pay all outstanding debts and expenses, including funeral expenses
and all taxes.
- Once all debts have been paid, the estate can be distributed to the
beneficiaries starting with specific bequests to individuals. If the Will
provides for the setting up of Trusts, then the executor is responsible for
making these arrangements. Once all specific bequests have been distributed,
the residue is distributed.
- The executor is accountable to the beneficiaries for the assets of the
deceased. It is therefore vital that accurate records are maintained when
dealing with all debts, expenses, taxes and the distribution of the estate.