Who is the Executor?
The executor is the person named in the decedent’s will to administer the estate according to the instructions in the will and as required by law.
State Requirements for Serving as Executor
In Texas, an individual executor:
- Must be at least 18 years old and of sound mind; and
- Must not be a convicted felon, unless he has been pardoned or had his civil rights restored.
If an executor lives out-of-state, he or she must appoint someone who lives in the state to act as a resident agent. This is typically the attorney representing the estate.
The first responsibility of an executor is to obtain the original will and safeguard it until a determination of the next steps can be made. Second, the executor needs to retain legal counsel to determine the type of probate to seek: independent administration, muniment of title or no probate at all.
In an independent administration, the executor appears before the probate judge with their attorney in order to receive Letters Testamentary which certify that the executor has been: 1-properly appointed to serve as executor and 2-granted the authority to manage estate property. Banks, title companies, brokerage companies, etc. rely on these Letters Testamentary to allow the executor to take control of the decedent’s property and sell or distribute it without court supervision. The only other duties to the court are to (1) file an inventory or list of all assets of the estate with their values and a list of claims against the estate; (2) give public notice of the probate by publishing a notice in a local newspaper; and (3) file proof you have notified the beneficiaries that it has been admitted to probate.
It is possible that the will may be probated as a muniment of title if the decedent had no debts, other than those secured by a lien against real estate, and there are few assets, all within Texas. A muniment of title probate is shorter and less expensive than a full independent administration. With a muniment of title, no executor is appointed by the court, and the will serves as a conveyance of the assets to the named beneficiaries. When filed in the real estate records after being admitted to probate, it will serve as a deed conveying title to real estate to the beneficiaries.
It is even possible that no probate of any kind is required. Consulting with an attorney will provide the executor with the best options depending upon the decedent’s assets and liabilities.
As executor, it is your duty to administer the estate of the decedent. This process includes six basic duties:
- Take possession of or control over the estate’s property;
- Safeguard the property by making sure it is properly insured and is safe from theft, damage, or destruction;
- Pay or settle claims against the estate, including matured debts and taxes;
- If there are creditor claims, set aside the homestead, family allowance, and other property exempt from creditor claims;
- Attempt to collect any debts payable to the estate or make and pursue claims against third parties to collect any money owed to the estate; and
- Distribute estate property remaining after payment of debts and claims to the beneficiaries named in the Will.
- For an independent administration, obtain a Tax ID number for the estate which is called an EIN or Employer Identification Number and is required by banks to open an estate bank account. If the executor is also the sole beneficiary of the estate, the executor can use his or her social security number as the tax ID number.
- For an independent administration, open a checking account for the estate. The decedent’s bank accounts should be closed with those funds being transferred to the estate’s bank account. All expenses and debts should be paid from this account.
- The executor should keep detailed records of all funds received and disbursed from the estate account. The checking account can serve as the primary resource for information regarding estate receipts and disbursements, and for preparation of any accountings that may be requested by a beneficiary of the Will.
Although an independent executor has broad powers when settling an estate, the executor also has strict fiduciary duties to the beneficiaries and creditors of the estate. When a person has a fiduciary duty, it means that person holds a position of great trust and responsibility and must put the interests of other persons ahead of the person holding the position of trust. If an executor violates fiduciary duties, they could be subject to personal liability.