Can the Executor of a Will Receive Gifts?

By Jim Thomas

Whether the executor of a will may receive gifts depends on the circumstances. The executor of a will has a duty, known as a fiduciary duty, to act in the best interests of the deceased and not obtain a personal benefit at the expense of the estate. However, if the deceased included the executor -- often a close family member -- in his will, it would not be a breach of the executor's fiduciary duty to accept his share of the estate, whether or not it is described as a gift.

Whether the executor of a will may receive gifts depends on the circumstances. The executor of a will has a duty, known as a fiduciary duty, to act in the best interests of the deceased and not obtain a personal benefit at the expense of the estate. However, if the deceased included the executor -- often a close family member -- in his will, it would not be a breach of the executor's fiduciary duty to accept his share of the estate, whether or not it is described as a gift.

Basic Duties

If you are the executor of a will, you are responsible for finding and taking control of the assets of an estate, paying any debts and taxes owed by the deceased and distributing remaining assets to the beneficiaries who are named in the will.

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Compensation

As an executor, you are entitled to be compensated for your time and work. The fees are determined by the laws of the state where the deceased resided. Fees are based on a percentage of the value of the estate in some jurisdictions. Other states allow an executor a "reasonable" fee, depending on factors such as the amount of time you spent on the estate, difficulty of the work and results obtained. Either way, this is compensation for the work you've done and not considered a gift.

Gifts

In addition to the right to be compensated for acting as the executor, sometimes gifts from the deceased are awarded as well. This is a tricky area of the law, since the executor has a duty of loyalty toward the deceased, beneficiaries and creditors with claims against the estate. However, when the executor is a close relative or friend of the deceased, most courts will allow him to accept gifts that are bequeathed to him in the will.

Considerations

It can be particularly tricky when attorneys or other professionals act as executors. Although they are entitled to compensation for their work as the executor, gifts bequeathed to them in the will may be questionable, largely because it creates the perception of impropriety. It also raises the possibility of undue influence by the professional over the deceased. A discussion of this issue by the New York Bar Association says that an attorney-executor should only accept gifts specified in the will of a deceased client in "exceptional circumstances." For example, if there was a close familial relationship between the deceased and the attorney-executor or there is a longstanding friendship and the gift is relatively small in relationship to the size of the estate. Other beneficiaries have the right in probate court to challenge the validity or amount of gifts made to executors.

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References

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