Executors

There is much misinformation circulating about the powers of an executor.

“I am Executor of my brother’s estate, so I get to decide who gets his money. It doesn’t matter what the Will says.”

Wrong. In fact, if you believe this and act on it, you could be letting yourself in for serious legal problems.

It is the essence of a Will that we are given the opportunity to decide who will get the possessions we leave behind when we die. A Will is a trust and an Executor is a trustee. This means they must do everything, within reason, to ensure the wishes of the deceased are carried out to the letter. In fact, the duty owed to the beneficiaries of the Will is one of the utmost care and selfless responsibility.

This does not mean that an Executor has no decisions to make. The Executor will make decisions right from the date of death. First, the Executor will be asked to decide on funeral arrangements. Because the Executor is responsible to the beneficiaries and has control of the estate money, the Executor gets final say on what will be spent on the funeral. He must consider the deceased’s place in life and the size of the deceased’s estate.

In addition, the Executor will decide which law firm and accounting firm will assist him in settling the estate. Also, he will hire realtors, auctioneers, and so on, as necessary. There are some decisions to be made in terms of whether to approve payment of accounts or force matters to Court. There are decisions on tax matters, publication for creditors, and so on.

Just because an Executor is a trustee, is not to say that Executors don’t get paid. If they keep track of out-of-pocket expenses like long distance telephone, postage, mileage and the like, they can be reimbursed by the Estate. In addition, they are entitled to be paid for their time and trouble. There is no fixed amount Executors are paid, however based upon decided cases, your lawyer can give you an approximate range of what a Court might find reasonable. Of course, within the approximate range, the Executor who has a complex estate requiring much work will be paid more than one with a very simple estate. Anything that is paid is, however, income and must be reported for Income Tax purposes.

In summary, then, while Executors make many important decisions with respect to the Estate, they must never lose sight of their primary responsibility to the beneficiaries and to carry out the wishes of the deceased as accurately and completely as possible. If you try to play Santa Claus, you will almost certainly get sued by the beneficiaries.