Duties of an Executor of a Will
When someone dies, their estate typically goes through probate. The Florida probate process generally begins with the filing of the deceased person’s Last Will and Testament. This filing is typically done by the person who is named as the executor of the will. Their duties do not end with filing the will, however. There are many duties of an executor of a will, and the fulfillment of these duties can take months, or even a year or more, to complete, based on the size and complexity of the estate. If you have questions about being the executor of a will, writing your own will, or other aspects of planning your estate, the experienced estate planning attorneys with Loughlin Law, P.A. may be able to assist you. Call (561) 677-8384 to discuss your estate planning needs.
What Is an Executor of a Will?
An executor of a will is someone who is named by another person to handle the latter’s estate after their death. This role is also known in Florida as a personal representative. The executor or personal representative is responsible for accounting for, preserving, and properly distributing according to the terms of the will all the property included in the deceased person’s estate. The executor of a will may accomplish tasks such as filing the will to start the probate process, getting copies of the death certificates, identifying and notifying creditors and beneficiaries, and other necessary actions related to the final administration of a decedent’s estate.
Initially, it can seem daunting to be the executor of a will because there is so much to do and keep track of. Fortunately, executors or personal representatives are not required to handle the entire probate process and estate alone. They are permitted to hire lawyers, accountants, appraisers, and other professionals as they deem necessary to assist them. They may hire these professionals to:
- Attorneys: draft legal documents, ensure inventories and other documents going to the court are properly formatted and completed, suggest experts when needed, or help them understand deadlines and requirements
- Accountants: assist with managing the deceased’s accounts, pay bills, oversee the selling of assets, deposit any money that the estate receives, or prepare and file final individual tax returns and estate tax returns
- Appraisers: determine the value of assets in the estate, determine the value of donated assets, assist with setting up and running an estate sale when needed
- Other professionals: Funeral directors to assist with planning and carrying out the deceased’s final arrangements or real estate agents to assist with selling real estate
What Are the Responsibilities of an Executor?
There are a number of duties of an executor of a will. Being an executor can be a time-consuming position, which is why Florida does allow persons filling this role to be paid for their service. Depending on the size and complexity of the estate, the executor of a will may handle such tasks as:
- Providing notice to all interested parties
- Identifying and serving notice to creditors
- Publishing a legal notice for unidentified creditors
- Paying creditor claims
- Inventorying and taking position of the estate’s assets
- Filing an asset inventory with the probate court
- Valuing and preserving asset values
- Managing estate assets by investing, selling, or caretaking as required
- Distributing assets to beneficiaries
- Filing any require income tax returns for the decedent or estate tax returns
- Reporting to the probate court
- Closing out the estate
How Much Power Does the Executor of a Will Have?
The executor of a will has broad powers. They have been given legal authority and power over the estate of a deceased person. They were given this discretion, in most cases, because the deceased person named them executor, followed by the probate court appointing them as personal representative in keeping with the terms of the validated will. However, the executor’s power is not unlimited. The powers of a personal representative can be challenged or disputed, and if there are conflicts among the beneficiaries or legal challenges to the will, the executive’s authority may be limited, restricted, or subjected to court intervention. In extreme cases the personal representative may be removed from the position.
If the executor abuses their power or mismanages the estate, they can be held in contempt of court or be sued in civil court by beneficiaries. To avoid being accused of mismanagement or abuse of power, the executor should be aware of the following things they are prohibited from doing:
- Taking any steps to carry out the will before the testator dies
- Signing an unsigned will on behalf of the deceased
- Taking action to manage the estate prior to the court appointing them executor
- Selling assets for less than fair market value without all beneficiaries agreement
- Changing any will provisions
- Stopping heirs or beneficiaries from contesting the will
How Long Does the Executor Have To Pay the Beneficiaries?
Many people have a misconception about being a beneficiary of a will from movies and television. In entertainment, people are often gathered for the reading of a will shortly after someone dies and are immediately given their inheritance. Unfortunately, this is for entertainment only and is not the way it works in reality. One of the duties of an executor of a will is handling the estate the way it is legally required to be handled. This includes things like ensuring that creditors are paid before the beneficiaries receive their bequests.
The process for probating a will in Florida depends on the type of probate. There is formal probate, which is the typical probate process that most estates go through. Then there is summary probate, which applies to certain estates that meet specific criteria. If you are uncertain about which type of probate applies to the will you are executing, an attorney with Loughlin Law, P.A. may be able to assist you in determining which probate process is most appropriate.
Formal probate is the regular probate process to which most estates in Florida are subject. This process begins with appointing the executor and includes a required 90-day creditor’s period during which creditors may make known their claims on the estate. Valid claims from creditors must be paid before the probate process can move forward to the next stage. There are other tasks that the executor must complete as well. The executor may manage assets during the creditor’s period, which means they can sell assets as needed. Once the creditors have been paid, if all other requirements have been met, the executor may then distribute the rest of the estate to the beneficiaries in accordance with the terms of the will. The entire process can take approximately six to nine months, assuming there are no issues.
Per Florida Probate Code: Administration of Estates 733.801, executors are not required to pay any money before final settlement of the executor’s accounts, deliver specific personal property (unless it is exempt), pay all or part of a distributive share, or surrender land unless the beneficiary can prove that the property will not be required for paying off debts, family allowance, any estate and inheritance taxes, other claims, the elective share of the surviving spouse, any charges or expenses of administration or to provide funds for contribution or enforce equalization in case of advancements. This means that the estate is likely to be mostly settled before the executor undertakes to distribute assets.
Summary probate is a quicker probate process that applies only to small estates worth $75,000 or less, or if the deceased has been dead two or more years, per Florida Probate Code: Small Estates 735.201. In order to proceed with a summary probate, the executor must first get a petition requesting summary probate signed by all beneficiaries and any surviving spouse. Once this petition is filed, if all requirements are met, the court will admit the will to probate and, after the executor performs a diligent search for creditors, give an order allowing immediate distribution of assets to beneficiaries. This process tends to be much shorter than the formal probate process and takes approximately one to two months.
What Are the Benefits of Being an Executor of a Will?
Most executors are a relative or close friend of the deceased. During this time of grief over the loss of a loved one, it can be difficult for some people to see any benefit to carrying out the duties of an executor of a will. However, there are some potential benefits to being given the distinction of being someone’s personal representative after their death. These benefits may include:
- Fulfilling a loved one’s wishes: When an individual knows that they are carrying out the final wishes of someone they cared about, the opportunity to do one last favor for their friend or family member can bring a sense of satisfaction and peace.
- Developing new skills: When someone carries out the duties of an executor of a will, they may gain some new skills in law, finances, and interpersonal communication. This valuable experience working closely with financial planners, accountants, attorneys, and other professionals may provide personal and professional growth and even open up new career options for some people.
- Strengthening family relationships: As executor, this individual is expected to act as a neutral third party, even if they are also a beneficiary. They are required to fairly and efficiently administer the estate, and this can cut down on disputes amongst other family members. Additionally, the executor can use the will and any guidance they may receive from an attorney, accountant, or other professional to keep emotions calm and reduce or avoid misunderstandings regarding the estate and its distribution.
- Possible compensation: Most people do not act as the executor of a will in order to make money. However, Florida Probate Code: Administration of Estates 733.617 does allow the personal representative to take a commission from the estate as compensation for their time and effort in administering the estate. The same statute also allows them to take a reasonable additional compensation for performing any extraordinary services, such as selling real property or conducting litigation on behalf of the estate.
Do You Have Additional Questions About the Duties of an Executor of a Will?
Carrying out someone’s final wishes requires organization, attention to detail, and a significant amount of time. You do not have to do it alone, though. An experienced estate planning attorney may be able to guide you through the process and handle some tasks on your behalf. If you have more questions about carrying out the duties of an executor of a will or need assistance with carrying out those duties, Loughlin Law, P.A. may be able to assist you. Call (561) 677-8384 to schedule an in-person or free virtual appointment to discuss your legal options.