Learn Important Probate Essentials, including key things that go wrong in an estate, how to prevent them, and what to do if they happen.
What is the job of an executor and what does the executor do? We’re going to answer those questions today.
My name is Erik Broel. I’m the founder and CEO of Georgia Probate Law Group. We’re a law firm that focuses exclusively on helping families after a loved one has passed away.
That means that we do a lot of work advising executors on what their job is, and how to do it properly, and helping them do it. We also do a lot of work on pursuing executors that haven’t done their job properly where the family members are upset or irritated because of the way the estate is being handled.
First, before I begin, quick note, I keep using the term executor. That includes executors where there’s a will, and administrations when there is no will. I’m talking about them both collectively when I’m using that term for our purposes today.
The first thing to understand about the job of executor is that they are a fiduciary.
What’s a fiduciary?
A fiduciary is the highest type of relationship that the law understands, which means that a fiduciary has to put their interests below the interests of the beneficiaries, or the folks that they’re serving as a fiduciary for.
It would be improper, for example, for an executor to do something, or take some action within an estate, that would advance their interest at the expense of the interests of one or more of the beneficiaries.
Since the executor is a fiduciary, their duties to the estate are sometimes higher than you would think. Some key things that an executor should be focused on throughout the process.
Number one, they need to be fair. They need to be fair with all of the beneficiaries and treat all of the beneficiaries pretty equally, because if they don’t, then they’re not upholding that fiduciary duty.
Some other key activities that an executor will engage in is an executor is responsible for gathering and protecting the assets of the estate.
That means that the executor is the one that opens the estate bank account.
They’re the ones that secure the house or the residence.
They’re the ones that need to secure the car, and they need to protect those assets.
The executor also needs to identify who the creditors of the estate are, and know who they are and how much they’re owed.
The executor needs to make a plan for what we’re going to do with the assets of the estate, how we’re going to handle the creditor claims, so that we know where the estate’s going, and what’s going to be remaining to be distributed to the family.
In that, the executor is responsible for making decisions about what property we sell, what property we don’t sell. Now, again, they have a duty to be fair to the beneficiaries, and this is where a lot of executors get tripped up. Sometimes they go beyond the limits of their power here.
Finally, the executor is responsible for following Georgia law, and following the will, with respect to distribution.
If there is no will, and again, we call that person an administrator, they’re responsible for making those distributions, per Georgia law, to the heirs.
If there is a will and we have an executor in place, then that person is responsible for understanding what the will requires, understanding the distributions that the will is asking for, and then making those properly.
Sometimes you get in a situation where there are insufficient assets to make all the distribution, and that’s where things get complicated, because there’s a specific order in which it is supposed to be done. Likewise, when paying creditors, there’s a specific order that the executor would need to follow when paying the creditors, especially if there’s not sufficient assets to do so.
That’s another area where executors often find themselves in trouble.
In addition to those general requirements, the executor has some other requirements, to protect the estate, and report on the estate.
The executor or administrator may be required to file a bond. They may be required to prepare inventories and annual returns.
Depending on the powers that are given to them by the will or by the court, the executor may have to go back and file additional petitions, and request additional permissions from the court to take certain actions, such as selling real estate or other estate assets.
That’s a very common area where executors come to us, because they’ve done it improperly, and we have to go back and fix it, which always takes longer and costs more money to the estate.
The executor will have some reporting requirements to beneficiaries, where they need to report on what is in the estate as well. So, a lot of duties for our executor, for our administrator. I didn’t cover all of them, but I wanted to cover some of the highlights, and especially on some of those areas where we find executors and administrators get themselves in trouble in estates.
If you have any questions about your own situation, please feel free to give us a call at (770) 920-6030. We’d be happy to help you.
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