Being named executor in someone’s will is, in equal parts, an honor and a burden. The person who chose you trusted you with the closing chapter of their life. They also handed you a list of tasks that come with real legal responsibility. This post walks through the basic duties — what an executor (or, if there is no will, an administrator) actually has to do.
An executor is legally responsible for sorting out the finances of the decedent. It is the executor’s job to make sure debts and taxes are paid and that what remains is distributed properly to the heirs. The executor must carry out these duties diligently, impartially, and honestly. An executor who fails to do so may be held personally liable. That part of the job surprises most people, and it is the reason many executors hire an experienced probate attorney from day one.
Each state has its own rules about who can serve as executor or administrator, but generally these are close family members. The position of executor is a paid position, and each state provides its own rules for executor compensation. In practice, because executors are usually close family, many forgo their fee.
The executor's duties include:
1. Determine whether probate is necessary. Many assets transfer to beneficiaries by operation of law — assets held jointly, or assets with beneficiary designations such as life insurance policies and retirement accounts. If all of the decedent’s property falls into these categories, probate may not be necessary. Additionally, the decedent may have transferred property to a revocable trust, which similarly does not need to be probated. If, however, the decedent owned assets outright that do not automatically transfer on death, probate will be required, and you will need to file a petition with the court to be appointed as executor.
2. File the original will with the local probate court. The executor is in charge of locating, reading, and understanding the will to determine who inherits the decedent’s assets. Generally, only an original will can be probated — which is one of many reasons it is critical to keep the original will safe and locatable.
3. Notify banks, credit card companies, and government agencies of the decedent’s death. The executor should notify the decedent’s banks and credit card companies. The Social Security Administration should also be notified.
4. Set up an estate bank account. The executor must open an estate account with a bank in order to consolidate the decedent’s assets and pay creditors and heirs from that account. The executor should also pay the decedent’s mortgage, utilities, and other ongoing bills throughout the probate process.
5. Maintain the property until it can be distributed or sold. The executor must find, protect, and preserve all of the decedent’s assets until they are distributed. This includes any real property owned by the decedent until it is sold or transferred to heirs.
6. Pay the estate’s debts and taxes. The executor must pay the decedent’s valid debts if there are sufficient assets to cover them. The executor must also file the decedent’s final income tax return for the year of death, and the estate’s own fiduciary income tax returns (Form 1041) thereafter. A federal estate tax return (Form 706) and a state estate tax return must also be filed if the estate is large enough.
7. Distribute assets. The executor must distribute the decedent’s assets pursuant to the will’s directives. If there is no will, state intestacy laws apply.
8. File an inventory of the estate’s assets with the court. Once the executor knows all the assets in the estate and distributes them pursuant to the will, the executor must file an inventory with the Surrogate’s Court.
How long does this take?
Even simple estates often take six to twelve months to administer. Estates with real estate, business interests, contested wills, or out-of-state assets can take much longer. If you have just been appointed and you are wondering whether the timeline is normal, the answer is almost always: yes, this just takes time.
Quick FAQ for new executors.
Do I have to take the job? No. You can decline. If you decline, the alternate executor named in the will (or, failing that, the next person in line under state law) takes over.
Am I personally liable for the estate’s debts? You are not personally liable for the decedent’s debts simply because you are executor. But you can be held personally liable for distributing assets to heirs before paying valid creditors, missing tax filings, or breaching your fiduciary duty. This is why most executors retain counsel.
Can I get paid? Yes. State law sets a fee schedule (in New York, it’s a sliding percentage of the estate). Most family executors choose not to take the fee, but you are entitled to it. If you do take it, the fee is taxable income to you.
Do I have to use the deceased’s lawyer? No. The will may name an attorney, but you are free to hire whomever you want. The estate, not you personally, pays the legal fees.
Each estate varies in size and complexity, and an executor’s job may be simple or extraordinarily challenging. The list above is the floor, not the ceiling. Consulting with an attorney early — before you do anything that cannot be undone — almost always saves time, money, and family relationships.