Executor

An executor is the person named in a will to administer the estate of the person who made it. The Uniform Probate Code's umbrella term for whoever performs that job is personal representative, which it defines to include "an executor, administrator, successor personal representative, special administrator and a person who performs substantially the same function under the appropriate governing law." Within that umbrella, an executor is nominated by a will and an administrator is appointed by the court where there is no will or where the nominated person cannot or will not serve. The two words describe how the person got the job; the job itself is the same one.

That vocabulary, and the mechanics of getting appointed, belong to probate and are set out there. What this page is about is the work: what an executor actually has to do, in what order, with what exposure, and whether to take it on at all.

The standard the job is held to is high, and it is not "do your best". Under the Uniform Probate Code a personal representative "is a fiduciary who shall observe the standards of care applicable to trustees", and is under a duty to settle and distribute the estate "as expeditiously and efficiently as is consistent with the best interests of the estate". Both halves matter. The fiduciary standard imports duties of loyalty and prudence borrowed from trust law. The expeditiously-and-efficiently duty is what a frustrated beneficiary eventually points to, and it cuts both ways: an executor who distributes fast to keep the peace has a different problem, described below.

The sequence, and why it is a sequence. Take control of the property and keep it safe, which the Code makes a duty rather than an option, including paying the taxes on it and taking reasonable steps to preserve it. Identify and value what the estate holds. Notify known creditors and publish notice for unknown ones. Let the claim period run. Pay what is owed in the order state law requires. File the decedent's final income tax return, which Internal Revenue Code section 6012(b)(1) makes the executor's job, and a fiduciary income tax return if the estate itself earns income; file a federal estate tax return if the gross estate exceeds the basic exclusion amount, under section 6018(a). Only then distribute, and close.

🔴 Personal liability is the part that is under-described everywhere, and it comes from two directions. The state rule is that an executor may pay a just claim early, but is "personally liable to any other claimant whose claim is allowed and who is injured by its payment" if the payment was made before the claim period ended without requiring security for a refund, or if it negligently deprived another claimant of their priority. The federal rule is blunter and does not vary by state: under 31 U.S.C. 3713(b), a representative of an estate "paying any part of a debt of the person or estate before paying a claim of the Government is liable to the extent of the payment for unpaid claims of the Government." Distributing to the beneficiaries counts. So the pressure every executor feels, from relatives who want their money and cannot see why it is taking so long, is pressure to do the one thing that can make the executor pay out of their own pocket.

The order of payment is state law, and there is no national list. Where the estate cannot pay everything, statutes rank the claims, typically putting administration costs and funeral expenses first, then family allowances, then debts and taxes with federal preference, then other preferred claims, then everything else, with no preference within a class. The categories and their order genuinely differ between states, so the right move is to read the statute of the state where the person was domiciled rather than to work from a general list.

Compensation is real, and it is not a percentage. The Uniform Probate Code entitles a personal representative to "reasonable compensation", allows them to renounce a compensation provision in the will and take reasonable compensation instead, and allows them to renounce compensation entirely. A small number of states set statutory fee schedules; most do not. A family member serving as executor commonly waives the fee, which is usually the right call where they are also a beneficiary, because a fee is taxable income to them while an inheritance generally is not.

When you are finally off the hook. Under the Uniform Probate Code, once a closing statement is filed, claims by successors and remaining creditors against the personal representative for breach of fiduciary duty are barred unless brought within six months, with fraud, misrepresentation and inadequate disclosure expressly carved out. Keeping the records that show what was done and why is therefore worth more after the job ends than during it.

⚠️ Being named executor and being named guardian are two different acts with two different mechanisms. The court appoints the personal representative, and nobody may act before letters issue. A guardian for a minor child, in Uniform Probate Code states, is appointed by the parent, by will or other signed writing, and that appointment takes effect on the parent's death or on defined findings about their capacity. So the shorthand "the will nominates and the court appoints" is accurate for the executor and wrong for the guardian, even when one document names the same person as both.

1. Locate the will and file it with the probate court in the county where the person was domiciled, with a petition for appointment.

2. Be appointed and receive letters. Until then nobody has authority over estate assets, and a bank will ask to see them.

3. Take control of the property, secure it, keep insurance in force, and open an estate account. Never mix estate money with your own.

4. Inventory and value what the estate holds as of the date of death.

5. Notify creditors and let the statutory claim period run.

6. Pay claims, expenses and taxes in the order state law requires, and file the returns the estate owes.

7. Distribute what remains under the will, and file a closing statement.

A hypothetical, showing how an executor ends up owing money personally. Nadia is appointed personal representative of her father's estate, which holds $180,000 in a brokerage account. Two months after letters issue, before the creditor period has ended, the three beneficiaries press her and she distributes $150,000 among them, leaving 180,000 − 150,000 = $30,000 in the estate.

A month later a hospital presents a claim that is allowed at $60,000, and the Internal Revenue Service assesses $25,000 of unpaid income tax on her father's final return. Total claims are 60,000 + 25,000 = $85,000 against $30,000 of remaining assets, a shortfall of $55,000.

The federal position is the clearer one: because she paid out $150,000 before paying a claim of the Government, she is liable for the government's unpaid claim to the extent of that payment, so the $25,000 is hers. On the hospital's claim she can be personally liable as well, because she distributed before the claim period ended without requiring security for a refund. Recovering from three relatives who have already spent the money is her problem, not the creditors'. Nothing about her conduct was dishonest, and the only mistake was the order. Figures are illustrative; the rules are not.

Pros of serving

• Someone who knows the family and the assets is usually faster and cheaper than a professional appointed by the court.
• You control the pace and the professionals hired, within the court's rules.
• You are entitled to reasonable compensation, and may waive it if that suits the family better.
• Once the closing statement is filed, exposure to most claims ends after a short limitation period.

Costs and risks of serving

• It is months of administrative work, often a year or more, and much of it is deadline-driven rather than discretionary.
• You can be personally liable for paying the wrong people first, including for paying beneficiaries ahead of the federal government.
• You are the person the beneficiaries call, and their interests are not always the same as each other's or as the estate's.
• The fiduciary standard applies whether or not you are paid and whether or not you knew what you were taking on.
• Being a beneficiary as well as executor is common and workable, but every decision that favours you personally invites scrutiny.