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.

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.

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.

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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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What Is the Statutory Amount to Pay an Estate Executor in Illinois?

References

Related articles

How Do Wills Work?

Wills have existed in some form for centuries. Their purpose is to distribute the possessions of the deceased in the way they directed, but without some form of legal backing this relies on the good faith of the people left behind. As a result, the way wills work has become subject to a stringent set of legal rules in order to honor the wishes of the will writer.

Who Pays Probate: the Estate or a Beneficiary?

The beneficiaries, or those named in a decedent's will, are often anxious to receive their inheritances, but an estate must often be administered through a court proceeding referred to as probate. During the probate process, the court works in conjunction with the person managing the estate, called the executor or personal representative, to value the decedent's assets and pay off the his creditors. Beneficiaries are often concerned as to whether they are required to pay those debts, or whether the debts are paid by the estate. It is the estate that is liable for the decedent’s debts; however, those debts may include more than just the decedent’s creditors.

How to Confirm an Executor of a Will

An executor is the person named in the will who is in charge of administering the deceased's estate. The executor marshals the estate assets, pays the debts and distributes assets according to the terms of the will. In some cases, the executor needs to be confirmed by a probate court before he can carry out his duties. The court gives the executor official documents that confirm the executor's authority to act on behalf of the estate.

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