A person who makes a will is called the testator. In his or her will, the testator ordinarily appoints an executor. That executor operates in a fiduciary capacity. A fiduciary is someone who is given power to take action on behalf of the deceased in order to honor their final wishes. The fiduciary is entrusted with the highest degree of trust to manage and distribute the decedent’s estate.
When No Executor Is Appointed
Each state has its own legal requirements for wills. If a legal writing complies with the state’s requirements, it will likely be considered a valid will. A valid will need not appoint an executor. If an executor isn’t appointed, a probate court judge will appoint one. However, the executor who is appointed by the probate court judge might be a complete stranger to everybody who is named in the will.
Opening the Estate
Upon the death of the testator, their estate is opened pursuant to a court motion by the appointed executor or by a person named in the will. Even a creditor might move for an estate to be opened if they can prove that they are owed money by the estate.
Asset Collection
When an order allows for a certain person to act as an estate’s executor, he or she must collect all of the estate’s assets. That includes all of the decedent’s personal property and any real estate that isn’t held in joint tenancy with somebody else. An inventory of that estate will be made for purposes of having it reviewed by a probate judge.
The Executor’s Functions
After all assets have been collected, the executor must perform certain functions and duties. Those ordinarily include:
- Maintaining the estate’s assets
- Paying the estate’s final bills.
- Paying the estate’s taxes.
- Distributing the estate to those named in the will.
Must an appointed executor take the office?
A person who is appointed to the office of executor of an estate can decline. He or she can also resign at any time during the administration of the estate. That’s why probate attorneys recommend that a person making a will designate one or more successor executors. If a testator fails to do so, and an appointed executor declines the office or is otherwise unable to serve, the probate judge can appoint a complete stranger to take their place.
Is an executor compensated?
The law allows for executors to be compensated for their time in administering and distributing an estate. The amount of any compensation is set by the probate court judge. Most executors are family members or trusted friends. They usually don’t ask to be compensated for their efforts.
Choosing the Executor
Appointing a family member or a close friend as the executor of your estate might not be the best decision. A more sensible choice might be choosing the person who is most competent to administer the estate. If a person who is appointed executor doesn’t feel competent in administering an estate, he or she is permitted to retain an attorney to act on their behalf. Given the complications involved in the probate procedure, only an intelligent and responsible person should be appointed as the executor or successor executor of an estate.
Talk to an experienced professional about your will or trust such as the Scottsdale Estate Planning Attorney locals have been trusting for years. You’ll want to make the right choices. We can advise you on estate planning issues that you might have questions about.
A special thanks to our authors at Arizona Estate Planning for their expertise in Probate and Estate Law.