Readers say it best: "This book covers all aspects of estate settlement in a complete and thorough manner.", "The book is written in easy-to-understand terms, with lots of good practical advice.", "I actually bought it to place in my file cabinet along with my Trust documents, Living Will and other documents", "We liked it so much, I bought this book for a friend who was handling a new estate." Acting as the executor, representative, or administrator of an estate is a complicated and time-consuming task, not only in an administrative sense but often in an emotional sense as well. The Executor's Handbook, Fourth Edition is a comprehensive guide for readers who need help understanding the basics of the procedures that settle an estate. In practical and straightforward language, it covers all aspects of estate administration, including funeral arrangements, organ donation, administering probate, dealing with the deceased's assets and liabilities, and personal representative's compensation. You will understand not only your responsibilities but the responsibilities of those who will be assisting you. Tables of state income tax rates, intestacy laws, and state-by-state probate requirements are also included, and a glossary, index, and list of recommended works complete this handbook.
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An executor is a person, bank, or trust company nominated in a will to carry out the wishes of the deceased and to do whatever is necessary to settle the deceasedās probate estate. If a testator, one who signs a will, has nominated you to this position, what you can do, should do, and must do depends on when you are nominated; on your relationship with the testator; and on the nature and value of the testatorās probate assets.
If, for example, you know months or years before the testatorās death that you have been nominated, there is much that you can suggest to simplifyāand perhaps eliminateāyour job and to save the survivors a substantial amount of money in probate costs, death taxes, and other expenses, as well as the time and frustration of having to deal with a county court (usually called a probate court, but in some states called a surrogate, orphanās, or chancery court). We will deal with this in detail in Chapter 3.
If you have a close relationship with the testator, you can play a supportive role at the time of death by helping to make funeral and burial arrangements, carrying out organ and body donations, collecting nonprobate assets, and assisting the deceasedās family and other survivors in various other ways, even though these activities are not legally required of executors. Chapter 4 will spell out what you can do in these respects.
But whether or not you do any of these things, your basic role is to carry out the terms of the willāthat is, to locate and assemble the deceasedās probate assets (see Chapter 5), to pay all taxes and legitimate debts, to protect the residue, and to distribute it to the beneficiaries designated in the will. Your work will be governed by the nature and value of the estate, by the terms of the will, and by state laws and court rules that govern the administration of decedentsā estates. Hence, your first step in understanding your role as executor is to learn the basic functions of a will and your role in settling and closing the deceasedās probate estate.
THE WILL
It is widely believed that only about 40 percent of all Americans die having signed a will, and that the remaining 60 percent die intestateāthat is, without a valid will. This statistic is correct only insofar as it refers to a formally signed will. But, in fact, everyone who dies has a will because, in the absence of a formally executed will, the laws of the state in which the deceased resided will impose oneā that is, it will require any probate assets left by the deceased to be distributed in accordance with that stateās intestacy laws. In either case, the appointment of an executorāor a personal representative, a term used in some statesāwill be necessary to carry out the probate court administration of any probate assets left by the deceased.
If we are to believe what we see in the movies or read in contemporary novels, the reading of a will and the settling of an estate are rather simple processes. The cast of characters consists of a lawyer, who reads the will, and the deceasedās survivors, some of whom are disgruntled at learning that theyāve been disinherited and others of whom leave the scene delighted with their generous bequests. In real life, however, the process is not that simple, because a will does much more than leave assets to specified beneficiaries, and the final settlement of a decedentās estate involves far more than the simple reading of a will.
BEQUEATHING THE ASSETS
The primary function of a will is to bequeath the testatorās probate assets in virtually any way that he chooses. There are certain limitations. A will cannot, for example, be used to completely disinherit a spouse, or bequeath assets to an illegal organization, or impose on a bequest conditions that are regarded as contrary to public policy (āI give my son $100,000 on condition that he divorce the woman to whom he is now marriedā). But the testator can disinherit one or more of his children, give more to one than to the others, leave money to a close but unrelated friend, to a charity, or to a shelter for homeless pets, or do virtually anything else with the probate assets that he leaves behind.
A state-imposed will is very different. Operating on the assumption that āblood is thicker than water,ā state intestacy laws may require that up to three-fourths of the deceasedās probate assets go to the surviving spouse, with the balance going to the deceasedās descendants or parents. If the deceased leaves a spouse but no children or grandchildren, up to half may go to his parents. If there are no children or grandchildren, no surviving spouse, and no parents, the estate may go to brothers and sisters, nieces and nephews. And if there are no surviving relatives, the entire estate may go to the state, a result called escheat. Under this statutory distribution formula, a surviving gay, lesbian, or other domestic partner gets nothing; neither does a close friend, an informally adopted child or mentee, an alma mater, or a favorite church or charity.
Whether or not there is a formally signed will, your responsibilities as executor include identifying and locating the beneficiaries and seeing that they receive the inheritance due them. Usually this is a simple process, but it can become tricky if one or more of them is difficult to locate, questions your authority to act, or contests the will or your proposal for paying claims or distributing the estateās assets.
PAYMENT OF DEBTS
A second function of the will is to direct that all lawful debts be paid by the estateānot merely such ordinary consumer debts as credit card balances, personal loans, and mortgage payments, but also final medical bills and funeral expenses. Here your task will involve notifying the deceasedās creditors of the death, advising them of the time limits for submission of their claims, deciding which debts must be paid and which need not be, contesting claims which you believe are not legitimate, and paying those debts that have been determined to be legitimate. Chapter 8 deals with this procedure in detail.
DESIGNATION OF A GUARDIAN
If the testator has left minor or incompetent children orphaned by the death, the will may have nominated someone as their guardian to serve as a parent substitute until they reach the age of majority or attain competence. Here, again, in the absence of a will (or, in some states, a writing separate from a will) the probate court will appoint a guardian, but this person may not be the one who would have been preferred by the deceased. The court almost invariably appoints a blood relative, whereas the deceased might have chosen a close friend with a more congenial lifestyle. As is sometimes the case, you, as executor, may also have been nominated as the guardian.
