Depending on your taste in television, executor of estate may sound like the head butler on Downton Abbey or a possible pro wrestler name. But either way, there’s nothing fictional about this important legal role. An executor of estate is the person appointed in a will to make sure the deceased’s wishes are met.
Maybe you’ve been asked to serve as the executor for a friend or family member, and you’re wondering how it all works. Or you might be researching how to make a will for yourself and wondering how to choose the best person as an executor for your own estate. Just keep reading and we’ll walk you through how this whole thing works.
What Is an Executor of Estate?
An executor of estate makes sure a will gets executed, or carried out—hence the name. (And if you didn’t know, an estate just means somebody’s stuff and money.)
An executor of estate is also known as a personal representative, or in older documents an executrix to reference a female executor. If you take this role on for someone with a will, you’ll have several responsibilities:
- Getting the deceased’s assets to the beneficiaries (otherwise known as passing out their stuff as described in the will)
- Passing on any wishes from the letter of instruction
- Paying off debts
- Filing final tax returns for the deceased (the person who wrote the will in the first place)
- Notifying the Department of Health in the deceased’s state of residence about the death of the testator (another name for the person who wrote the will).
While it’s not as fun as body slamming some guy or ordering around servants, it’s pretty obvious an executor of an estate does have to wrestle through a lot of instructions and tell a few people what to do. And most of the duties revolve around money, so it’s not a responsibility to take on lightly. Anyone who becomes an executor of estate is required by law to do all in their power to protect the estate’s assets, sometimes known as fiduciary duty. So how do people wind up in such a role? Let’s see.
How Is an Executor of Estate Appointed?
Anytime someone dies, it always sets in motion a legal process called probate. The purpose of probate is to make sure the departed’s property and possessions go to the correct people, and any remaining taxes or debts owed get paid. If the person dies with a valid will in place, the process is a lot easier for everyone. If they don’t, things get more complicated. With or without a will, a probate judge has to determine who should act as the executor of estate. Here’s what that looks like:
1. Find out if there’s a will.
If the person who died had a will and it names an executor for the estate, the search for an executor might already be over—but there are some conditions to that . . .
2. Confirm the will is valid.
Let’s say the will checks out, the judge confirms it’s valid and it actually names an executor. The next step is confirming that person for the job (outlined in step 3).
But that’s the best-case scenario. It could turn out the will exists but gets ruled invalid because it wasn’t properly witnessed or notarized, or it doesn’t comply with certain state laws. In those cases, the judge will have to keep looking, and will likely skip to step 5 below. On the other hand, it could be ruled a valid will, but the judge could find that it fails to name an executor. They’ll once again skip to step 5 below.
3. Verify the executor named in the will is eligible.
The judge might have to override the testator’s choice of an executor for a few different reasons. A named executor can be passed over if:
- They’re still underage at the time of probate.
- They have a mental disability.
- They have a criminal record.
- They have a history of substance abuse.
If the named executor passes each of those tests, you’d think you’d surely pinpointed the right person for the job. But wait! You can’t assume they’re willing to do it!
4. Find out whether the person named in the will wants the job.
The court can’t force anyone to take on the job of executor of estate. It’s a time-consuming project, and it can potentially involve financial risk.
Save 10% on your will with the RAMSEY10 promo code
Even though it’s customary to compensate anyone taking it on with pay from the estate itself (if there’s anything left), the person named may just not have the time or inclination. So the court has to find out whether the person named is up for it. If the probate judge confirms the person named is willing to serve, the search for an executor is over! If they’re not? Proceed to step 5.
5. Appoint someone as an estate administrator.
In situations where the judge can’t decide on a legal executor of estate through a will, they’ll appoint someone to the job, usually a close relative. (In the case of a will that was overruled on a technicality, the judge could still choose the original executor to serve.) Their legal title becomes estate administrator or personal representative, but they’ll still have the exact same role and duties as an executor.
Can Someone File to Be Executor of an Estate Without a Will?
If the deceased died without a will, the job of executor of their estate is open. And if you feel like you could do a good job and want to take it on, you can apply to the court for the job. Read through all an executor of estate’s duties though and make sure you’re up for it. If you or someone else doesn’t apply, the court will appoint someone (you could end up executor anyway!).
What Are the Limitations of the Executor of Estate?
It’s an executor’s duty to do everything in the best interest of the estate they represent. An executor of estate definitely cannot do anything that would knowingly:
- Delay or prevent the payment of estate debts
- Get the estate mixed up in tax evasion
- Keep beneficiaries from receiving what they’re supposed to get
Being executor comes with a lot of power, which is another reason why the person taking it on must be trustworthy. They certainly can’t do anything for personal gain, like cutting themselves a massive check for being executor right out of the gate that uses up so much of the estate’s money there’s not enough left to pay debts and give to the beneficiaries. That’s pretty low-down, and anyone who tried it would end up in trouble with the law for being a negligent executor.
No executor worth the name will refuse to pay legit creditors or hold back payments to beneficiaries as laid out in the will. For a lot of executors, a big part of their job is putting the deceased’s property up for sale so they can use that money to settle debts or pay beneficiaries. Executors are expected to get an outside opinion on how to price the assets to make sure they’re sold for a fair market price.
Another no-no? Something known as self-dealing, where an executor tries to pull a fast one for a huge financial gain. For example, taking advantage of what you know about the deceased’s home to purchase it for way under market value and then living in it yourself.
An executor of estate needs to have a servant’s heart. There are a number of details they’ll need to keep in mind as they go about the business of settling the decedent’s estate. But an executor’s first goal should be to steer clear of legal troubles—both for their own sake and that of the estate and its beneficiaries.
What Are the Executor of Estate’s Responsibilities?
There are quite a few things an executor of estate needs to be aware of going into their duties. Here we go!
File the will.
Yeah, don’t miss this all-important first step. We know the death of a friend or relative is hard, but it’s the executor’s job to quickly file both the will and the death certificate with the local health department and the local probate court. In some states you have a month. In others, it must be done within a few days of the death.
Start the probate process.
You can probably do this the same day you file the will with the probate court. To get the ball rolling, the court will issue you a document known as letters testamentary that confirms your legal rights as the executor of estate. Although the question of which kinds of assets are required to go through probate varies by state, it’s always up to the executor to find out the laws where they live. Typically, the following kinds of assets do not require probate:
- Life-insurance policies
- Bank accounts
- Other payable-on-death accounts that allow you to name beneficiaries for those specific accounts—like a 401(k) or IRA
Tell everyone who needs to know about the death.
Here’s a list of who you’ll be responsible for notifying about the death:
- Beneficiaries listed in the will
- Local media for the purpose of posting an obituary
- Family and blood relatives who could have a legal claim on the deceased’s property
- Creditors who may be owed money by the estate
- Insurance companies
- Guardians of minors
- The Social Security Administration
- Medicare, if applicable
- The Department of Veterans Affairs, if applicable
- Banks and other financial institutions
- The U.S. Postal Service
Start a bank account for the estate.
As an executor, a big part of your job is paying people—debts, taxes and beneficiaries. To protect yourself and keep everything legal and aboveboard, consider opening a bank account specifically for conducting estate business.
Figure out what (and where) all the assets are.
Since your responsibility as executor is to deliver every cent and asset to its new legal home, your first task is to locate all the deceased’s important documents, account details and actual stuff—and make sure it’s safe.
Don’t let anyone physically remove stuff from the decedent’s estate until you as the executor have determined who it truly belongs to. So nobody should be carrying away their dearly departed Aunt Agatha’s pearls, not even her niece who promises you she was always Aunt Agatha’s favorite. For all you know, those pearls belong to Cousin Cleo in Cleveland. If you let them out of your sight, you could be on the hook for a pretty pearl . . . err penny!
Don’t forget about larger property either (we’re talking dirt). Did the deceased have a mortgaged house or piece of land? You’ll need to make sure payments keep going out on time until the land is sold or given to a beneficiary. You’ll also need to keep up with rental properties, including collecting rent or listing them for sale (or both). And be sure to let the probate court know if you take any of these actions.
Cover taxes and debts.
Death and taxes are the only things in life you can be sure of according to ol’ Ben Franklin. Well, death immediately followed by taxes is also a very reliable scenario.
Make sure you take care of the deceased’s taxes and pay off any debts—and do it in that order.
- Find out if the deceased still owed taxes and file income taxes for the estate return (Form 1041) if necessary.
- Large estates may have to pay federal estate taxes, and it’s up to the executor to make that payment from the estate’s assets.
It’s very important the executor pays federal taxes out of the estate before paying out anybody else—including creditors and beneficiaries. If they pay out in the wrong order and run out of money, the executor can be held responsible for taxes owed and have to pay out of their own pocket.
Give the assets to their beneficiaries.
Now we get to the best part! Especially if you know and love the beneficiaries, making sure they receive their inheritance can be a real treat, and an honor!
Now that you’ve taken care of the death and taxes part (and confirmed with the probate court that all tax and debt obligations are fulfilled), you can get down to the business of honoring the decedent by making sure everyone they loved gets what’s intended for them.
Have fun handing out the money and stuff to friends and family!
When Do the Executor of Estate’s Duties Begin, and What Is the Timeline?
Estates can take anywhere from six to 18 months to settle, and the executor is involved at every step along the way (yeah, we weren’t kidding when we said it’s a big job). Here’s a rough timeline of what you can expect to do when executor of estate.
The week immediately following the person’s death is full of practical duties.
Notify family: One of the first things you’ll do is notify family, close friends and any active employers about the death.
Secure the estate: This means lock the doors on the house if there is one. Make sure any valuables are in a safe place. Grab the mail regularly. Cancel any subscriptions or services like housekeeping or meals. Arrange for pet care and lawn care if necessary.
Arrange funeral: While this isn’t a legal responsibility of the executor, it may fall to you to organize and delegate decisions about the deceased’s funeral service. If someone else is willing to take this responsibility, it’s probably a good idea to let them take over this job. You’ll have plenty of other tasks on your plate.
Find the will: You’ll also need to figure out where the will is. Hopefully, the decedent gave you access to a copy (like in a legacy drawer) and told you where to find the original. But if they didn’t, there are a few places you can check. Ask any personal lawyer the decedent had, check their safety deposit box, and check the court or register of authorized wills if your state has one.
First 3 Months
This is when you really start digging into the technical stuff.
File will with court: Get that will to the court! States differ on how long you have, but some give as little as 10 days to submit the will. This is also a good time to decide if you need a lawyer. Take a look at the will and estate, and if it looks tricky you might want a lawyer’s help.
Start probate: There’s a slim chance you won’t have to go through probate, but most estates do. Generally, executors start this process around the two-to-three-month mark. Once it starts, you’ll get papers called “letters” that establish your authority to act on behalf of the estate—which you’ll need when you’re dealing with banks, utilities and businesses.
Inventory estate: This probably won’t be fun, but you need to inventory the estate. That means taking stock of everything the deceased owned, including physical assets as well as things you can’t store in the attic—like stocks. This also means identifying any debts owed like mortgages or loans. Sometimes assets are hard to find. Depending on how large the estate is, it could take several months to find and claim everything.
Maintain estate: While you take care of all those chores, you’ll also need to keep everything running. If the deceased owned a business, you’ll need to keep that running. You’ll need to maintain their house and keep paying utility bills, etc. And it’s your job to make sure the house or any other unoccupied property remains secure.
Cancel life stuff: Cancel things like the descendant’s phone and internet service.
Notify Social Security: Let Social Security know the descendant has passed and return any checks received after the date of death, unless the decedent has a surviving spouse. If that’s the case, still let SS know, and they’ll direct the checks to the surviving spouse.
Notify others: Let any life insurance companies and account managers for IRAs, 401(k)s, etc., know the decedent has passed.
Get an EIN: Every estate needs an identifying number—kind of like people have Social Security numbers. In the case of estates, the government has declared they get an Employer Identification Number (EIN). Yeah, we don’t get it either. But you have to get one for the estate.
Open bank account for estate: You can’t go around writing checks for the deceased—that would be check fraud. So open a bank account just for doing business on behalf of the estate
Notify beneficiaries: This won’t be fun—not that anything else we’ve listed so far is a barrel of laughs. But you’ll need to let the people mentioned in the will (or if there was no will, then those the state determines are entitled to inherit) know the deceased has passed and they have an inheritance coming.
Notify public: Place a notice of death in the local paper. This will let any creditors know the clock is ticking to get what they’re owed.
Add up assets: You’ll need to figure out how much each asset is worth so you can divide it all up evenly or according to the will. You’ll also need to know this for taxes.
The further out you get from the date of death, the more variation there is in what will still need doing. A lot of what you’ll need to do after three months is just a continuation of what you’ve been working on, like locating and maintaining assets.
Carry out plan to distribute assets: Depending on how big the estate is, this could be a simple task or quite complicated. If it’s very complicated, you may want to hire a lawyer to help you. But either way, you need to come up with a plan for how the estate will be divided and given to any beneficiaries.
Sell house or business: This would be part of the plan to distribute the assets. If there’s a house or business and no one is inheriting it intact, it will have to be sold and the proceeds divided among the beneficiaries.
Pay debts: If the decedent owed any money, it’s your job to pay the creditors what’s owed out of the estate.
Pay taxes: That’s right. The taxpayer may be dead, but the government still isn’t going to let them rest until they’ve paid their taxes. But since they are dead, you’ll be doing it for them.
Depending on what time of year the decedent died, you may need to pay taxes earlier than six to 12 months out. (For example, if they died in January, you’d need to pay taxes in the first three months because federal income taxes are due in April.)
There are at least three types of taxes you’ll probably have to pay: the decedent’s personal income taxes, annual estate income taxes (yes, the estate becomes a “person” and “owes” income taxes once the owner dies), and annual property taxes (if they didn’t own a house or land, then you can nix this one).
Other taxes you may need to pay are estate and inheritance taxes. As of 2023, federal estate taxes only apply if the estate is worth $12.92 million—hey, good on the decedent for building that much wealth!1 Inheritance taxes are state level and only some states have them, so you’ll want to check with the state they lived in to see if they apply.
Distribute assets: You came up with a plan a few months ago and put it in motion—now it’s time to hand inheritances out to the beneficiaries.
Collect executor’s compensation: You did a lot of work, and it can be a thankless job. But not totally thankless. Don’t forget to pay yourself out of the estate.
Finalize probate: If the estate went through probate (it probably did), you’ll need to submit and get the court to approve a Final Accounting and a Final Statement that lay out what you did as executor with everything in the estate just to make sure it’s all aboveboard.
What Are the Main Issues That Come Up for Executors?
Sadly, we all know that a death followed by an estate process can be a tough time—for everyone. Emotions run high and can cause family fights and even legal issues. These are the main issues that can come up.
As an executor, it’s your job to follow through on the decedent’s wishes as expressed in their will. Unfortunately, greedy or selfish relatives and even legitimate heirs may disagree with the way their loved one decided to divide the property.
It can help if you share the decedent’s specific wishes from the will with everyone, but that might not keep some relatives from arguing with you or even trespassing on the deceased’s property. That’s why it’s important to secure the estate’s assets and property as soon as possible.
Are you sure you’re the only executor of estate for this will? News flash: Some wills name more than one executor. In many families, a parent will appoint two or more children as co-executors. That’s a fine sentiment, but it can also lead to needless arguments about who’s really in charge.
To avoid this problem, you have a few options. You could drop out of the process completely—after all, nobody is legally required to take on the role of executor of estate. But if it’s something you want to do, see if you can persuade the other co-executor(s) to drop out themselves. Or see if you can agree to pass the executor responsibilities on to a neutral third party like a bank.
If you’ve read this far, you’ve probably started to see that an executor of estate has a ton of responsibility—and it can be a pretty big time-sink. If you’re already swamped, look into getting professional help or asking the probate court for a replacement.
Personal Liability to Cover the Estate’s Taxes
This part feels a little scary, but you need to know the executor of estate can be held personally responsible to pay the deceased’s taxes. Now before you have a heart attack, it’s only under certain circumstances (aka if you pay the wrong people first and run out of money for taxes).
So, the order of paying people and institutions out from the estate is very important. For example, if you pay off debt or give beneficiaries their cut of the estate before paying taxes, and then you don’t have enough to cover taxes owed, that’s when the IRS can come after you for the money owed.
You’ll need to make payments from the estate in this order:
- Funeral expenses
- Estate admin expenses, like legal, court and executor fees
By the way, the IRS can keep going after an estate to get taxes owed for 10 years, so make sure you get this done.2
If an estate doesn’t have enough of the green stuff to pay even the taxes in the right order, the executor needs to petition the court to get the estate declared insolvent. Basically, the court says the estate is bankrupt. In this case, you won’t be held responsible for any taxes (or debts).
If you’re considering putting on the executor hat, it’s a good idea to make sure you’re aware of how much the estate owes compared to how much it’s worth so you know what you’re getting into.
Interested in learning more about estate planning?
Sign up to receive helpful guidance and tools.
How Do You Choose Your Executor of Estate?
Maybe you’re on the other side of things and looking to name an executor in your will. Unless you have an accountant or estate lawyer for a daughter-in-law, you might be scratching your head on who to pick for your executor.
Your decision will depend on a few things, including how big your estate is, what your family and close friends are like, and how they get along. The job of executor isn’t for the faint of heart or anyone who doesn’t handle numbers and finances well.
Earlier, we mentioned that being an executor means you have a fiduciary duty to fulfill. The word fiduciary comes from the Latin word for trust—and being a good executor of estate is all about being trustworthy!
Here are some qualities to look for when choosing an executor of estate:
- Responsible: They’ll have to know how to meet deadlines and deal with a judge.
- Experienced with finances: They don’t have to be an accountant, but they need to be comfortable dealing with financial institutions and numbers.
- Respected and liked: They get along with beneficiaries.
- Financially secure: Their finances are in order. They don’t have a ton of creditors, never declared bankruptcy, etc.
- 18 years or older
- No criminal record
- U.S. citizen
- Mentally sound
It’s common for a testator (again, that’s the person writing a will) to name their spouse as the executor of estate. But it’s often another family member or close friend. And it can even be one of the beneficiaries of the estate itself.
As with beneficiaries, it’s a good idea to name a backup executor in your will as well. Because your will could be quite old by the time it’s used, this guy or gal should be younger than you and in good health.
For larger or more complex estates, it might make sense to name a professional third party, like a bank or trust company, as your executor to head off any legal headaches for your beneficiaries.
If you’re choosing someone to act as executor for your own will, be sure they’re a person of integrity who will see the whole thing through even if it gets complicated.
Have You Considered Getting a Will?
Wouldn’t you rather have a clear plan in place for your own executor of estate, instead of leaving these questions for some probate court to decide? Of course!
Whether you’re simply shopping for a will and wondering who to appoint as your own executor of estate or taking on that role yourself, you need a will and a way to organize your estate. And if you didn’t see that before, taking on executor responsibilities will probably convince you of the need to take care of end-of-life issues today!
You can create your own will online with RamseyTrusted provider Mama Bear Legal Forms in less than 20 minutes! They provide attorney-built documents that are state-specific and legally binding. All you need to do is plug in a few answers, and the rest of the work is done for you. Once you’ve purchased, there’s no rush. You have 180 days to complete the form from there.
Once you’ve made your will, put a copy in your legacy drawer—along with copies of all your other important documents like tax returns and investment statements—so your executor and family can access it when the time comes.
Organizing your estate is a key step in financial planning, and in loving your family well.
Complete Last Will & Testament Package for One Person
- Last Will & Testament
- Health Power of Attorney
- Finance Power of Attorney
Complete Last Will & Testament Package for Married Couples
- Two Last Will & Testaments
- Two Health Powers of Attorney
- Two Finance Powers of Attorney
Frequently Asked Questions
Does a court need to approve the executor of estate?
When an executor of estate is named in a will, a judge must approve the person named. There are several reasons why a person named by a will to be executor could be disqualified, including a criminal record or being underage.
Do executors of estate get paid?
After all the fees and taxes have been taken care of, executors get paid out of the estate. If the will stated a number for their pay, they’ll get that. Otherwise, state law will decide how much the executor gets paid—usually a percentage of the estate. It’s a complicated job that takes a lot of time, so it’s a good thing these people get compensated!
Can an executor of estate also be a beneficiary?
An executor is often also a beneficiary—parents often name one of their kids, for example. This works well when family dynamics are healthy but could lead to accusations of unfairness and fighting if the beneficiaries involved don’t get along or are unhappy about the choice. If you’re thinking about who to name as an executor in your will and your family isn’t the most harmonious unit around, consider naming a neutral party like a bank to execute the estate.
Can an executor override a beneficiary?
Even if an executor doesn’t like a beneficiary or doesn’t think they deserve what’s left to them, they can’t deny a beneficiary their inheritance as named in the will. But if a beneficiary disagrees with the executor on something the will says to do, the executor can override the beneficiary’s opinion or desires. As long as the executor is doing what the will or a judge says and serving the estate, they have authority.
Is an executor of estate the same as a trustee?
While both an executor and trustee deal with estates, make sure beneficiaries get their inheritances, and pay taxes and debts, they’re very different roles.
An executor of estate deals with an estate after the owner is deceased. A trustee takes care of a trust as long as the trust is in existence—which can be during the life of the trust creator and/or after they are deceased. Trusts can last a very long time, so a trustee’s responsibilities are usually a lot bigger than an executor’s.