An Executor’s Role

The information in this column is not intended as legal advice but to provide a general understanding of the law.  Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.

One of the main components of a Will is the portion where the person making the Will (the Testator) names the Executor.  Who and what is an Executor and what are some of the considerations you should take when selecting one is the topic this week.

The Executor is the person who carries out the instructions in your Will and who pays the estate’s debts and taxes.  Now I do not mean the Executor pays these out of his or her pocket, but instead makes sure these items are paid with the proceeds of the estate.  Because the Executor will have broad responsibilities and powers it is important to choose a competent and trustworthy Executor.

 An Executor can be any person or institution (such as a bank or trust company) you choose.  Here are some tips on what you should consider when choosing an Executor:

•  Are they experienced and competent in business matters?
• Are they familiar with your business, finances and property?
• Are they willing and able to act as your Executor?
• Are they able to spend the time necessary to perform the duties of an Executor?
•  Are they able to work with the estate’s attorney and accountant?
• Are they able to provide for the continuation of your business?

Another important item to consider when selecting an Executor is what would occur if they are unable to act as Executor when the need arises?  It is best to have an alternate Executor and, if possible, a third.  The reason for this is simple.  If you do not select an alternate, then it is up to the court to do so.  The person the court selects may not be someone you would want.

 The Executor’s responsibilities include the following:

• The first step is the probate of the Will.  In order to do that, an application must be filed with the Probate Court located in the jurisdiction in which the decedent was domiciled at the time of his or her death;
• Following the probate hearing, the County Clerk will issue Letters Testamentary to the individual or institution designated in the Will as the Executor (after the Executor has signed an Oath of Office);
• Giving a general notice to unsecured creditors within 30 days of his or her appointment;
• Within 60 days of the Executor’s appointment, giving notice by certified or registered mail to each secured creditor whose debt is secured by a lien on Texas real property or personal property owned by the estate
• Collecting the following documents to establish rights for insurance, pensions, Social Security, and ownership: Will, birth and marriage certificates, Social Security number, citizenship papers, insurance policies (life, health, accident, and property), bank books and statements, deeds, leases, care title/registration, income tax returns, veterans discharge certificates, disability claims, unpaid bills, property tax bills, and credit card information;
• Notify the post office, relatives, friends, employer, insurance agents (life, health, and accident), religious, fraternal, civic, and veterans organizations, and unions of your death;
• Collecting, preserving, and appraising the personal property of the estate;
• Securing the residence and reviewing the insurance coverage.
• Preparing an Inventory, Appraisement and List of Claim’s for your estate.  The Inventory, Appraisement, and List of Claims must list all the decedent’s probate assets and all claims that are owed by third persons to the estate.  (Note that the term “claims” in this context refers not to the decedent’s debts or claims the decedent owes to others, but only to amounts that other people owe to the decedent.)
• Paying all valid debts including funeral costs, fees and expenses incurred in administration, medical bills, and utilities from your estate account;
• Applying for Social Security benefits and employer identification number;
• Determine whether your estate has any tax liability and making sure your final tax return is filed;
• Distributing the money and property in accordance with the Will.

As you can see, the Executor plays a very important role in the administration of the Testator’s estate.  Usually the attorney handling the probate will assist the Executor with the above duties, but it still requires someone who is familiar with your affairs so that all of the above information can be collected and addressed.

While you can elect to pay the Executor compensation for their time and effort, this is not always the case.  Thus, make sure you have talked over your decision with the person you select to make sure they are up to the task.  And as always, consult with an attorney when making this choice.

If you have a question regarding Elder Law, Estate Planning, Living Trusts or Probate in the Huntsville area, please contact us at 936-295-6394 or visit our website.  Call today and we will connect you with an experienced Elder Law and Probate Attorney.  We can schedule you a face to face appointment to discuss your circumstances.  If you have questions or are considering any aspect of your estate plan, probate, your health care directives, etc. we can help!  Call us now at 936-295-6394 .  We look forward to hearing from you and assisting you with any and all elder law and estate planning needs

Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C.  He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

www.moakandmoak.com