Executor’s role in Probate
What is an “Executor?” In California the Executor is also called a personal representative. It is the person or entity nominated by the deceased person (the “decedent”) in a Will to administer the estate of that person as directed by the Will. Let’s start by stating that it’s both an honor and a burden to serve as someone’s executor. An executor – now also called a personal representative – is entrusted with responsibility for winding up someone’s affairs. This can be a large or small task, depending on the size of the estate and the organization of the decedent.
Once appointed, the Executor “runs” the estate much as a business person would run a business. The Executor makes sure all debts are paid, all taxes paid, all assets cared for, then distributes the remaining assets to the beneficiaries in accordance with law and the Will.
If legal action is brought against the estate, the Executor is in charge of defending. Further, if the estate or the decedent has a legal claim against a third party, the Executor would be obligated to file suit to recover property that may belong to the estate.
The law does not require an executor to be a legal or financial expert, but it does require the highest degree of honesty, impartiality, and diligence. This is called a “fiduciary duty” — the duty to act with the upmost good faith and honesty on behalf of someone else. Executors have a number of duties, depending on the complexity of the deceased person’s financial and family circumstances. Typically, an executor must:
- Find the deceased person’s assets and manage them until they are distributed to inheritors. This may involve deciding whether to sell real estate or securities owned by the deceased person.
- Decide what probate court proceedings are needed. Most jointly owned assets pass to the surviving owner, without probate. In the event that the deceased person’s property is worth less than a certain amount (how much depends on state law), it may be able to go through a streamlined probate process.
- Figure out who inherits property. If the deceased person left a will, the executor will read it to determine distribution. If there’s no will, the person in charge (sometimes called the administrator) will have to look at state law (called “intestate succession” statutes) to find out who the deceased person’s heirs are.
- Handle day-to-day details. This may include terminating leases and credit cards, and notifying banks and government agencies — such as the Social Security Administration, the post office, Medicare, and the Department of Veterans Affairs — of the death.
- Use estate funds to pay continuing expenses. The executor may need to pay, for example, utility bills, mortgage payments, and homeowner’s insurance premiums.
- Supervise the distribution of the deceased person’s property. The property will go to the people or organizations named in the will or those entitled to inherit under state law. If you find yourself in the situation that you become appointed as an Executor you should contact an attorney to determine what probate process is necessary or if probate is even necessary. But take comfort in this – being an executor is always better than being the decedent.
Jeremiah Raxter, Esq.
Menifee, Ca 92586
27851 Bradley Rd, Suite 145