What Does it Mean to Be the Executor to a Will?

By Joseph Nicholson

The executor to a will is the person chosen by the probate judge to act as the administrator of a deceased person’s estate during the probate process. The executor is often someone who was nominated for this role in the will, but the judge makes the ultimate decision as to who will serve in this capacity. In addition to the personal obligations an executor might feel toward the deceased, the executor has legal responsibilities to the estate, its creditors and beneficiaries.

Fiduciary Duty

An executor is considered a fiduciary, which means the executor is held to a heightened standard with regard to handling of the estate’s financial matters. Fiduciary duties fall into two main categories. The duty of loyalty means that the executor must do what is in the best interests of the estate and its beneficiaries, not what is in his best interest or what he thinks is right. The duty of care means the executor must perform his basic functions with a certain reasonable level of competency.

Agency

In some circumstances, the executor may also be an agent of the estate and subject to the legal principles of agency. In general, an executor-as-agent must avoid conflict between his personal interests and those of the estate, act subject to the directions of the estate’s beneficiaries or the court, perform with reasonable diligence and act within the appropriate scope of authority. An executor may be called upon to defend the estate in court against creditor claims or to file claims against others on behalf of the estate, either of which would imply acting as an agent of the estate.

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Discharging Duties

The executor of a will must keep in mind the general principles of fiduciary duty and agency when carrying out the particular duties of the position. These duties include compiling an inventory of the estate identifying all assets that are properly part of the estate and their estimated value. The process will likely involve contacting banks, insurance companies, stock brokers, warehouses or any other institution that may be custodian of estate assets. To gain control of the estate assets from these private businesses, the executor must obtain and present a death certificate and letters testamentary showing her status as the executor. Another important obligation of the estate may be paying federal or state taxes, which the executor is responsible for filing in a timely fashion. If there are assets remaining after the obligations of the estate are satisfied, the executor must also ensure that the beneficiaries receive the property to which they are entitled.

Accountability

The executor can be held accountable for failure to perform her duties satisfactorily, and may be removed for wasting the value of the estate through poor management. Embezzlement, fraud or other malfeasance can also result in removal of an executor and the filing of a civil action against her. Before an executor is released from her obligations, she must file a final accounting with the court, which interested parties can review and use as a basis for their claims against the executor. In some states, the executor may even have to post a bond in court against the possibility of being sued for waste or malfeasance of the estate.

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What Are the Duties of an Executor of a Will in Missouri?

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What Are the Qualifications for an Executor for an Estate?

Executors play a vital role in ensuring that your property passes according to your wishes after death. It is the job of the executor to collect your property, pay your outstanding debts and distribute your remaining assets through a court-supervised process known as probate. Although states have some basic legal requirements for executors, other qualities, such as financial responsibility and trustworthiness, are often considered most important by will makers when choosing whom to appoint for this important task.

Trouble With an Executor

Just because your loved one trusted an individual enough to name her as executor of his will, doesn’t automatically follow that she’s right for the job. In many cases, decedents write their wills and name their executors many years before their deaths. Circumstances can change in the interim and the executor may no longer be qualified. Unfortunately, beneficiaries often don’t become aware of this until the executor has taken office and they realize she’s bungling the job.

How to Fire the Executor of a Will

Although an executor owes a fiduciary duty to the heirs of the will she administers, the heirs do not hire her and therefore cannot fire her. The testator selects the executor to administer his estate, and after the testator's death, only a probate judge can disqualify an executor upon proof of incompetence or serious infraction. Any heir can object to the executor's capacity or actions by filing a timely challenge, but must prove these allegations at trial.

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