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Executor Responsibilities
We have removed the obstacles to writing
a Last Will and Testament. It is convenient, low cost, and simple.
The MyWill™ service steps 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, customized for
your local jurisdiction.
If you are the executor of the Will of someone who has created
their Will here, 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™ service). |
| 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. |
| The executor must make an inventory of the property
in the estate and the value of the property. |
| 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?
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.
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 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.
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. |
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