Estate laws are a body of laws that govern how an individual’s estate is handled. This includes overseeing how the individual’s property is managed during their life as well as after they become incapacitated or pass away.
The term estate specifically refers to:
- All of the personal belongings of an individual;
- Real property; and
- Intangible assets, such as patents or copyrights.
If there are any debts or taxes on the property which the individual owes, that may also be included as part of their estate.
What Does Estate Law Cover?
As previously noted, estate law is a broad body of law which covers issues including:
- Estate planning;
- Estate administration;
- Duties of the executor;
- Distribution of property; and
- Debt.
Estate planning is a way an individual can plan out how their property will be distributed after their death or incapacitation. Estate planning can address important issues, such as:
- Wills and trusts;
- Organ donation;
- Legal guardian issues;
- Medical treatments; and
- Funeral arrangements.
Estate administration is the process of managing and distributing an individual’s estate after they pass away. These issues may be handled by the individual’s designated executor, or if the individual died without a will, their property will be distributed according to the laws set out in their state, known as dying intestate.
An executor, or an administrator in cases where the individual dies intestate, is responsible for handling the distribution of the decedent’s or deceased individual’s, estate. The executor is tasked with carrying out the wishes of the deceased individual in accordance with their will.
The distribution of property is the manner in which the decedent’s property is distributed to the beneficiaries named in the will. This is the ultimate goal of estate planning.
Any debts which the individual still owes must be addressed. This applies even if the individual becomes incapacitated or passes away.
It is important to note that estate laws are based on the local and state statutes in a specific jurisdiction. Therefore, they will vary depending on the state in which the decedent resides.
This may affect how a legal issue related to an estate is handled as well as the solution to the issue.
What is the Executor of an Estate?
An individual’s estate includes the entirety of their:
- Personal belongings;
- Property; and
- Assets.
When an individual passes away, an individual will need another individual to manage and distribute their property as well as ensure that their debts and other financial matters are settled. As noted above, the individual who is named to complete these tasks is known as the executor.
An executor is an individual who is named in a will or other relevant document. The executor is responsible for overseeing the assets of the decedent after their death.
The term executor is often associated with issues concerning wills, trusts, and probate. An executor may also be referred to as a personal representative or an administrator.
The law does not require that the executor of an estate be a financial or legal expert. However, they are often required to accomplish many financial and legal duties, including their fiduciary duty to the decedent’s estate.
If an individual does not select an executor in their will, or if they pass away without a will, the court will typically appoint an individual to act as their executor. In addition, an individual may also apply to become an executor in certain situations.
What Duties Does an Executor of an Estate Have?
Executors are appointed to ensure that the intentions of the decedent are carried out properly and according to their wishes. This means that an executor is responsible for representing the interests of the estate.
These interests may include:
- Managing the needs of the estate;
- Contacting any beneficiaries which are named in the will; and
- In certain cases, defending the estate in a lawsuit.
Executors also have a duty to refrain from certain actions or conduct, including:
- Using the deceased individual’s personal assets for their own personal profit or gain;
- Making changes to the decedent’s will; or
- Withholding inheritance from any rightful beneficiaries.
Although an executor has many responsibilities, their primary duty is to ensure that all of the decedent’s debts and taxes are paid off and to ensure that any assets which remain are distributed to the named beneficiaries. Other duties which an executor may perform include:
- Filing the decedent’s will in the probate court;
- Notifying family, friends, financial institutions, such as banks, governmental institutions, such as Medicaid or the post office, and even media outlets, such as a newspaper, of an individual’s death;
- Terminating:
- credit cards;
- leases;
- subscriptions; and
- others;
- Creating a bank account for any money that will be owed to the decedent, such as paychecks, stock dividends, etc.;
- Filing and paying final income taxes for the decedent; and
- Ensuring that necessary payments continue, such as insurance, mortgage payments, and recurring bills.
If an individual’s will goes to probate, the executor will most likely have additional duties. Probate is the process where a court determines the validity of an individual’s will.
The executor’s duties during probate may include:
- Hiring a probate attorney to represent the decedent’s estate;
- Contacting other relevant parties; and
- Managing tasks which are related to the probate process.
Does the Executor of an Estate Get Paid for Their Role?
In some cases, the responsibilities that an executor of an estate must take on can feel as though they have acquired a second full-time job. Eventually, however, their hard work may pay off.
Generally, the individual who is appointed as an executor of an estate has major incentives to perform their duties because they usually have the most to gain from the deceased person’s will or estate plan. Although the majority of executors perform their duties out of respect for the decedent and are not, in general, compensated for that work, an executor does have a right to be paid for performing their duties.
Typically, the decedent will provide the amount of compensation or the portion of the estate the executor will receive in their will. However, if they have failed to do so, state laws will govern what the executor is permitted to receive.
Whether or not an executor has the right to compensation will depend upon the laws of the jurisdiction. Every state has specific rules regarding the payment of executors.
These rules are often based on certain facts, such as the value of the estate and what a probate court determines is the reasonable value of the time and services of the executor. An executor cannot, typically, however, collect their share of the estate until they have completed all of their responsibilities and duties as an executor.
How Can Hiring an Estate Lawyer Help?
Consulting with an estate lawyer for any issues, questions, or concerns you have related to an executor can be extremely helpful. If you are appointed as an executor, it may feel overwhelming.
There are numerous requirements, duties, and responsibilities that you will be required to fulfill at a time when you and your loved ones may be dealing with an immense emotional impact. If you have been named as an executor, your attorney can assist you with determining what exactly you are required to do and how to do each task.
Your attorney can assist you with ensuring that you are meeting all of your duties and responsibilities as an executor. Your attorney can also provide representation if you are required to appear in court, which may occur if a probate proceeding is necessary or a lawsuit is brought against the estate.
If you need assistance choosing an executor for your estate, an attorney can be a great resource. Your lawyer will be able to guide you through the process, including understanding the consequences of the choices you may make.
