What are the Duties of an Executor During Probate?

By Stokes McMillan Antunez Martinez-Lejarza P.A. on November 20, 2023

Handling Probate

When a person passes away, their estate goes through a legal process called probate. This involves validating the will, inventorying assets, paying debts and taxes, and distributing property to the heirs. The executor appointed in the will handles probate and they carry out the decedent’s wishes. Choosing a reliable executor is crucial, as they take on significant duties and responsibilities during this complex process. As a Florida probate attorney can explain, the executor’s role starts immediately after the death.

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Locating the Will and Filing for Probate

After a death, the executor must locate the original will and then they must file it with the county probate court. This opens probate. This should be done as soon as possible, ideally within 30 days. The court officially appoints the executor at this time. If there is no will, the court names an administrator to handle the estate. The administrator has the same duties as an executor. It is important to seek help from a probate attorney to help navigate this process.

Notifying Beneficiaries and Heirs

Within 3 months of appointment, the executor must send formal written notice to all beneficiaries named in the will. They must also notify all legal heirs, even if not included in the will.

Taking Inventory of Assets and Debts

A crucial duty is locating, securing and inventorying the decedent’s assets. This includes real estate, bank accounts, investment accounts, personal property, and any other assets owned. The executor must also identify all outstanding debts and claims against the estate.

Managing the Estate

Until probate closes, the executor takes over management of the decedent’s finances. This includes paying bills, closing accounts, filing tax returns, managing real estate, making investment decisions, and collecting income on assets.

Paying Valid Claims and Taxes

The executor must use estate funds to pay any unpaid debts like credit cards, utilities, or medical bills. They must also file the decedent’s final income tax returns and estate tax returns, if needed. Estate taxes are generally only due on large estates. It is important to consult an estate attorney before you pay taxes.

Distributing Assets to Beneficiaries

After all debts and taxes are settled, the executor distributes remaining assets to heirs as instructed in the will. They should maintain detailed records of distributions made.

Filing Tax Returns for Estate

In addition to the decedent’s final income tax return, the executor may need to file income tax returns for the estate every year until probate closes. Estate income taxes apply to investment earnings or other income received during probate.

Obtaining Tax Identification Number for Estate

To file tax returns and open estate bank accounts, the executor must obtain an Employer Identification Number (EIN) from the IRS for the estate. This requires submitting an SS-4 application.

Keeping Detailed Records

Extensive record-keeping is vital. The executor should set up an organized filing system to retain receipts, tax filings, correspondence, inventory lists, court filings, and distribution records.

Reporting to Court and Heirs

Most states require the executor to provide periodic statements to the probate court and heirs about estate administration. This accounting reports all financial transactions, asset inventories, income/disbursements, distributions, etc.

Petitioning for Final Discharge

Once estate administration is complete and all assets distributed, the executor petitions the court for a formal discharge from duties. This closes probate and releases them from liability.

Choosing a responsible executor is one of the most important estate planning decisions. They temporarily step into the shoes of the deceased to correctly handle their affairs.

Key Qualities to Look for in an Executor

When selecting an executor, here are some key traits to look for:

1. Integrity and Honesty

The executor has fiduciary duty to act in the estate’s best interest, not their own. Utmost integrity and honesty are mandatory.

2. Impartial Judgment

Difficult decisions arise during probate. An objective executor who can weigh issues impartially is vital. Bias could lead to disputes.

3. Attention to Detail

Meticulous record-keeping and attention to detail are required. The executor must track numerous transactions, filings, inventories, notices, etc.

4. Organization and Responsibility

The executor must handle many complex tasks in a timely manner. Being extremely responsible and organized is crucial. Missing filings can create costs and penalties.

How Involved is the Executor’s Role?

An executor assumes major short-term responsibility. Their workload and involvement depend on the estate’s complexity:

Size of estate – Larger estates require more time for inventorying, valuing assets, tax filings, investment management, etc.
Asset types – Managing real estate, business interests or other non-liquid assets creates greater demands.
Claims against estate – Extensive creditor claims or litigation substantially increases duties.
Disputes – Disagreements over the will or distributions lead to more responsibilities.
Location of assets – If assets are located out-of-state, more time is needed to gather and secure them.

A simple estate with minimal assets may take less active involvement. However, most executors should expect their duties to be time-consuming for 6-18 months.

Limits on an Executor’s Powers

While executors have considerable authority, they cannot act beyond their lawful powers. Florida probate attorneys caution that executors cannot:

Use estate funds or assets for their own benefit
Make gifts or charitable donations unless the will authorizes this
Modify terms of the will
Make distributions not specified by the will
Self-dealing or failure to properly carry out the decedent’s intent is breach of fiduciary duty

This makes the executor personally liable for any resulting losses.

Seeking Legal Guidance

Serving as an executor involves major financial and legal obligations. An experienced probate or estate planning lawyer can offer invaluable guidance on fulfilling duties properly and limiting liability risks. Receiving competent legal advice is strongly recommended.

Many executors retain an attorney to handle probate filings, communications with heirs, tax compliance, managing disputes, or advice on permissible actions. This provides helpful support navigating the complexities of estate administration.

FAQs

1. How quickly must you start probate after a death?

The executor should file for probate as soon as reasonably possible, ideally within 30 days of the death. Florida probate attorneys recommend prompt action to avoid any unnecessary delays in administering the estate.

2. What happens if an executor fails to meet deadlines for filings or notices?

Missing filing deadlines can result in costly penalties for the estate and even liability for the executor. Executors who don’t meet notice requirements also risk legal challenges later by heirs claiming improper notice.

3. Can an executor refuse the position?

Yes, the named executor can choose not to serve, either by declining appointment or resigning later on. If so, an alternate or successor executor would need to be appointed. Refusal should be a last resort, as finding a replacement causes delays.

4. Does an executor get paid?

Yes, executors have a right to reasonable compensation for their services, either at a rate specified in the will or according to state law. Payment comes directly from estate assets.

5. When does the executor’s oversight of the estate end?

The executor’s duties end when the probate court approves a final accounting and enters a decree granting discharge. The executor should maintain thorough records until then in case any questions arise later about their handling of the estate.

6. Can an executor be held liable for mistakes?

Yes, executors have fiduciary duty to the estate. If losses result from breaching this duty through mismanagement or improper actions, the executor may face significant liability, including being required to repay estate losses with their own money.

Choosing the Right Probate Attorney in Florida

During probate, executors play an integral role carrying out the decedent’s final wishes and ensuring proper estate administration. This requires extensive duties like managing assets, paying debts, filing taxes, distributing inheritances, keeping thorough records, and reporting to court.Selecting an executor with sufficient competence, integrity, impartiality and organization is key. Understanding the significant obligations involved allows naming an executor able to handle this important position capably. With sound legal guidance, executors can effectively perform their wide-ranging fiduciary responsibilities and bring proper closure to the decedent’s affairs.

DISCLAIMER

This article was partly generated by the use of artificial intelligence or AI, and is provided as general information for educational purposes only. This article is not intended to provide specific legal advice, and should not be relied upon as a substitute for competent advice from a licensed attorney. To speak with one of our attorneys all you have to do is click here.If you’re interested in more in-depth ruminations on this area of the law written 100% by a live human being, visit the Florida Probate & Trust Litigation Blog by going to the home page for firm partner Juan Antunez.