Executor of a Will

Being named an executor or choosing the executor of a will does not imply such a person must have legal or financial expertise.

Most often a spouse, close friend or main beneficiary of a will is named as executor (or personal representative).

That makes good sense because such persons will have a good knowledge of the wishes of the deceased, details of the estate and an interest to wind up the estate without delay.

Executors need not do this all by themselves. Should they need expert help, the executor of a will can easily get assistance from a lawyer, para-legal or accountant at a negotiable fee and court officials are more than willing to explain procedures and issue relevant forms.

Note: court officials are not allowed to offer legal advice.

Many banks or financial institutions will draw up a will for their clients with themselves as executors. Unfortunately the personal relationship between banker and client has been replaced by electronic banking to a large extent, so it is quite possible that a complete stranger - albeit a competent individual - will oversee the will.

An executor's fee will definitely be payable, whereas a beneficiary as executor of a will, mostly waive any fees due.

Before naming an executor and alternate, you should confirm with them that they are willing and that they meet the requirements of your state or country: i.e. not a minor or convicted felon and a resident of your country.

Some states also have restrictions on out-of-state executors.

Codicil to Change Executor

An executor may pass away before a testator does, or may become unwilling or incapable of administering an estate, or may move to another home too far away to be of practical assistance. Whatever the reason, you can amend a will with a simple Codicil to change executor and you would therefore not have to make a new Will to effect this change.

Take a look at the legal guidelines in the following articles and make use of our free PDF and Word codicil templates to draft your own document:

• Addendum to a Will - Follow our 7 Steps to Make a Codicil to Will.
• Codicil to Will - The formal requirements to execute a valid document.
• Free Codicil to Will Form - To change an executor or substitute executor. This form also provides sample wording for a codicil to remove a beneficiary, delete sections of your Will, change a guardian etc.
• How to Revoke a Will - We take a look at express revocation of a Will, implied revocation as well as revocation in law. It can also be done with our stand alone printable Revocation of Will form.

Important Note: Please refer to our main page for a step-by-step overview on Writing a Will.

Duties of the Executor of a Will

In simple terms, it is the responsibility of the executor of a will - after probate has been granted - to handle all payments due by the estate, such as funeral expenses, debts and taxes and thereafter to distribute the remainder of the assets to the beneficiaries as specified in the will.

• The first step is to make a complete list of the assets of the deceased.
• The second step is to apply to the court for a grant of probate. This mainly entails the submission of proof of death, proving the will is valid and filing a number of forms which can be obtained from the court.
• Once probate has been granted, the executor must firstly pay:
  * funeral expenses and administration fees,
  * an allowance to the surviving spouse and any children as permitted in law
  * and then debts or any taxes owed by the deceased.
• The executor must then publish a notice (generally in two newspapers or as required by country or state law) of intended distribution of the balance of the estate.
  
  Anybody with a claim can submit their particulars within a specified period (generally one month). Thereafter the remainder of the estate can be distributed according to the will.

The executor may have to sell assets in order to raise cash for the above mentioned payments!

Avoid Probate with Payable on Death Accounts

It is important to consider as part of your estate planning, having a payable on death account or having an insurance policy with a named beneficiary to ensure the surviving spouse and dependents have immediate funds available whilst the estate is being wound up.

It is a simple matter to make a checking or savings account a payable on death account.

Talk to your bank or financial institution to assist you in naming your beneficiary. You are still the only person with access to the funds, until the day you die.

Even if you were in a coma, the money would not become available to the beneficiary. The only way the beneficiary can have access to the funds will be by presenting a death certificate.

Although this account will not have to go through probate, the money in this account will still be calculated as part of the estate, for the purpose of taxes and duties.

Furthermore, this is also not intended as an easy vehicle to bequeath inheritances to loved ones. If there are large sums involved, you need to speak to a financial advisor or estate planning attorney for advice and to ensure it does not conflict with your wishes in your last will and testament.

If the executor of a will is not the sole beneficiary of the will, a bank account should be opened in the name of the estate and accounting of all expenses or debts and income from sales must be provided.

What if There is No Executor or the Named Executor of a Will is
Unwilling to Serve?

If someone has made an incomplete will i.e. did not name any executors or the persons named are not capable or eligible to act in that capacity, the court will appoint an administrator cum testaments annex. This is normally abbreviated to: Administrator C.T.A (meaning administrator to the will annexed).

This person may be selected by the majority of the beneficiaries, so it need not be a stranger.

If someone has been named executor but that person is unable or does not want to serve, then he/she must sign a declination. This is a legal document (sample below) that declines being appointed as executor.

The alternative or contingent person named in the will then assumes the duty. If that person also declines or no contingent was named, the court will appoint an executor.

• Choosing the Legal Guardian of Minor Children
• Estate Assets in a Will
• What is Probate

In Law Made Simple by Owen Salmon S.C. the functions and duties of an Executor in South Africa is explained in simple language which sets out clearly what an executor must or must not do, and the timeframe involved.

Follow the image link to view the open source page and click here to purchase your copy.

The main criteria for an executor of a will is somebody who is conscientious, trustworthy and fair, with a healthy dose of common sense! Professional help is easily available should the need arise.

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