The Executor of an estate is the individual appointed by the Testator in a Last Will and Testament to oversee the probate of the estate following the death of the Testator. A common mistake made by Testators is to appoint a spouse, friend, or family member to the position of Executor without really taking the time to consider if that individual is the best person for the job. Keep in mind that if you appoint someone close to you as your Executor, that person is going to be grieving your loss at the same time he/she will be expected to perform the duties and responsibilities of Executor. What are those duties and responsibilities? To help ensure that you appoint the right person to the job, the estate planning attorneys at Nash, Nash, Bean & Ford, LLP discuss the role of Executor.
When an individual dies, the law requires that most decedent’s estates go through the legal process known as probate. If the decedent died testate, meaning with a valid Last Will and Testament in place, the individual named as the Executor in that Will is the person who will oversee the administration of the estate during the probate process. If the decedent died intestate, meaning without an estate plan, any competent adult can volunteer to be the Personal Representative of the estate and oversee the probate process. If no one volunteers, the court must appoint someone, usually a local attorney.
What Is Involved in Overseeing the Probate Process?
The reason it is so important to take the time to consider the position of Executor before you appoint someone is that the position requires the individual to handle a wide range of duties and responsibilities, many of which require some degree of legal and/or financial skill or experience. Most Executors do retain the services of an experienced estate planning attorney to assist them, particularly if the estate must go through formal probate; however, the Executor remains ultimately responsible for the probate of the estate. Common duties and responsibilities of an Executor include:
- Estate assets – as soon as possible after the decedent’s death, all estate assets must be identified, located and secured. A date of death value for all assets must also be obtained. Prior to opening the probate of the estate, the Executor must determine which estate assets are probate assets and which are non-probate assets because the non-probate assets bypass the probate process and may be distributed to beneficiaries immediately.
- Opening probate – an original copy of the decedent’s Last Will and Testament, along with a petition to open probate must be submitted to the appropriate probate court to get the probate process started.
- Creditors – the Executor must notify known creditors individually and unknown creditors via publication in a local newspaper. All claims filed by creditors must be evaluated by the Executor and approved or denied. If approved, the claim must be paid using available assets. If the estate lacks sufficient liquid assets, the Executor must sell assets to raise the necessary funds to pay creditors.
- Litigation – if anyone challenges the validity of the Will submitted to probate, the Executor must defend the Will throughout the ensuing litigation.
- Taxes – all estates are potentially subject to federal gift and estate taxes. Estates in the State of Illinois may also be subject to Illinois estate taxes. All applicable tax returns must be completed and submitted and all tax obligations paid out of available estate funds before the probate process can conclude.
- Beneficiaries – finally, at the end of the probate process, the Executor must prepare all necessary legal documents and take all necessary steps to effectuate the transfer of the remaining property to the intended beneficiaries and/or heirs of the estate.
Contact Estate Planning Attorneys
If you have questions or concerns regarding the role of Executor within an estate plan in the State of Illinois, contact the experienced estate planning attorneys at Nash, Nash, Bean & Ford, LLP by calling 309-944-2188 to schedule your appointment today.