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THE ROLE of

EXECUTOR DUTIES AND RESPONSIBILITIES

CURTIS J. FORD ILLINOIS ATTORNEY


Your estate plan will likely include numerous documents; however, the foundation of most estate plans is a Last Will and Testament. When you create your Will you will need to make many decisions, most of which relate to the distribution of your estate assets upon your death. Another decision you will need to make though is who to appoint as the executor of your estate. People often make the mistake of making this decision lightheartedly because they don’t understand the numerous and complex duties and responsibilities that an executor has during the probate of an estate.

EXECUTOR POWER AND AUTHORITY An executor’s authority comes both from statute and from the decedent’s Will. In Illinois, if a decedent dies without leaving behind a valid Will the decedent is said to have died intestate. In that case, the court will have to appoint someone to administer the estate. That individual is known as an administrator. When a valid Will was executed prior to death the individual named under the Will as executor will be responsible for administering the estate during the probate process. While both an administrator and an executor are granted authority related to the administration of the estate under Illinois law, an executor may have additional powers granted by the Will. In addition, although a surety bond is frequently required to be posted by the administrator of an estate, the Will may expressly waive the bond requirement for an executor.

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PRELIMINARY MATTERS Upon your death, a search must begin for an original copy of your Last Will and Testament. Once the Will has been located and read, the person named as executor in the Will must immediately take care of some preliminary matters. First, a certified copy of the death certificate needs to be obtained. This will be needed to accomplish things like closing financial accounts and cancel benefits such as Social Security retirement. The executor will also need to secure estate assets to the best of his or her ability.

OPENING PROBATE Your executor will need to determine if formal probate is required. Illinois offers an alternative to formal probate known as a “small estate affidavit” that may be used if your total estate assets are valued at less than $100,000, you did not own any real property, and other requirements are met. If formal probate is required, your executor will need to submit your Will to the appropriate court and file the required documents to open the probate of your

The primary purpose of probate is to ensure that all of a decedent’s estate assets are located, inventoried and valued prior to being passed on to loved ones or heirs of the estate.

estate. Because probate requires an understanding of numerous areas of the law, at this point most executors retain the services of an estate planning attorney to assist during the

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probate of the estate. Your executor may also need to arrange for estate funds to be used to cover the expenses associated with your funeral and burial.

LOCATING, INVENTORYING AND VALUING ASSETS Another important duty of your executor is to locate, inventory, and value all of your estate assets. This can be a laborious process. Along with identifying all assets your executor will need to determine if the asset is included in the probate process or may pass outside of probate. Life insurance proceeds, for instance, typically pass to the beneficiary outside of probate. Not only must all assets be identified but a date of death value must be assigned to each asset as well. For real property, your executor will likely request appraisals from a real estate appraiser. For financial accounts, your executor will need to request a detailed statement showing the value on the actual day of death. Personal property can be more complicated. A professional estate appraisal service may be retained to provide appraisals for personal property; however, if your estate includes unique property such as antiques, artwork, or collectibles a specialist may be needed to provide an accurate value.

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CREDITOR CLAIMS Official notice of the probate proceedings must be given to known creditors as well as a general notice published to unknown creditors. Your executor is responsible for providing notice. Once creditors have been notified, they have six months to file a claim against the estate with the court. Each claim must then be reviewed by your executor to determine if the claim is valid. If your executor decides the claim is valid it must be paid out of estate assets. If a claim is denied, the creditor may choose to appeal the denial to the court.

REPRESENTING THE ESTATE IN LITIGATION The executor of your estate has a duty to represent the estate during any litigation. Litigation occurs most often when a creditor claim has been denied or when someone challenges your Will, a process commonly referred to as a “will contest”. Although your executor will likely be represented by an attorney, the responsibility to defend your estate, including your Last Will and Testament, ultimately rests with your executor.

MANAGING ESTATE PROPERTY Throughout the entire probate process your executor is responsible for managing and maintaining all estate property. This could include anything from ensuring that a vacation home in the mountains is winterized before

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the first freeze to feeding your dog to liquidating an investment account. Decisions may also need to be made regarding the sale of estate assets. If your Will does not make specific gifts of estate assets to beneficiaries then your executor will need to sell assets (if you gave your executor that authority in your Will) to produce cash that can be divided among beneficiaries pursuant to the provisions in your Will.

PAYMENT OF TAXES Both your personal income taxes and a federal gift and estate tax return will need to be prepared and filed by your executor before the probate process can be concluded. If any taxes are due your executor will need to pay those out of estate assets as well.

TRANSFERRING ASSETS TO BENEFICIARIES Finally, your executor will need to file a final inventory with the court explaining how all estate assets have been handled during the probate process. All payments made out of those assets must also be accounted for to the court. Once the court signs off on the final inventory your executor must prepare all legal documents necessary to transfer the remaining assets to the intended beneficiaries. Now that you understand what the duties and responsibilities of an executor are, you should realize why choosing an executor is a decision that should not be taken lightly. Be sure

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that you appoint someone who has the abilities, the time, and the willingness to take on the job.

REFERENCES http://www.forbes.com/sites/bernardkrooks/2013/02/14/understandingthe-role-and-responsibilities-of-an-executor/ http://www.nolo.com/legal-encyclopedia/what-does-executor-do30236.html http://www.aarp.org/money/budgeting-saving/info-05-2013/5-things-toknow-about-being-an-executor.html http://money.cnn.com/2013/06/01/pf/executor.moneymag/index.html

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About the Author Robert N. Nash Robert N. Nash is a partner in the law firm of Nash Nash Bean & Ford, LLP. The law firm has offices in Geneseo and Moline, Illinois and conference facilities available throughout Northwestern Illinois. Mr. Nash chose the estate and business planning arena because he believes it provides a positive force in his clients’ lives. He practices preventative, rather than remedial law. Robert Nash focuses on all aspects of estate planning, including estate, gift and income taxes, trust and probate administration, real estate, and business. Nash Nash Bean & Ford, LLP www.nashbeanford.com Geneseo 445 US Highway 6 East Geneseo, IL 61254 Phone: (309) 944-2188 Fax: (309) 944-3960 The Role of Executor – Duties and Responsibilities

Moline 5030 38th Avenue, Suite 2 Moline, IL 61265 Phone: (309) 762-9368 Fax: (309) 944-3960 www.nashbeanford.com

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Role of Executor : Duties and Responsibilities