THE DUTIES OF AN EXECUTOR DURING PROBATE

In a will, an individual identifies an executor to represent his or her estate. The executor is either a person or corporate entity (such as a bank or trust company) that ensures that all the deceased’s assets are collected, debts are paid, and the remainder of the assets are distributed to the legatees identified in the will. The process of estate administration is generally referred to as “probate.” Some of the duties of the executor are as follows:

Get the original will and file it in the deceased person’s county of residence

Under Illinois law, the executor has a duty to file the will. In fact, the failure to file a will in your possession within 30 days of the decedent’s death is a Class 3 felony. Therefore, it is necessary to file in a will in the executor’s possession even if it is determined that opening a probate estate is unnecessary.

File a petition to admit the will to probate

In most instances, if the decedent held assets in his or own name (rather than in a trust), it is necessary to open a probate estate. It is the job of the executor to file the Petition requesting that the Court open the probate estate.

Notify the heirs and legatees

After the court appoints an executor, all the decedent’s heirs and legatees must be given notice of the admission of the will and appointment of the executor. The “heirs” are defined by Illinois statute as all those individuals who would receive money from the decedent’s estate of no will existed. The “legatees” are all those individuals or entities who are receiving a portion of the estate pursuant to the will.

Set up a bank account in the name of the estate

After the court appoints the executor, it is necessary to open up a bank account in the name of the decedent’s estate. This account shall be used to receive all incoming funds, such as the proceeds of the sale of any of the decedent’s property, and to pay all the bills of the estate.

Gather all the decedent’s assets

As the executor, you have a duty to collect all the decedent’s assets. This includes all real estate and personal property such as bank accounts and personal and household items. At this time, the executor should create an inventory of all the assets of the estate. Although this document generally does not need to be filed in court, it is essential to proper record keeping.

Pay the estate’s debts and taxes

While the executor is collecting the decedent’s assets, he or she should collect all information related to the decedent’s debts. Again, it is very useful to compile a list of all the debts. The executor has a duty to pay all the decedent’s debts from the proceeds of the estate.

On a related note, once the probate estate is opened the executor should publish a claims notice in a local newspaper in order to notify all of the decedent’s creditors, which may not be known to the executor at the time. This shortens the time period that the unknown creditors have to come for to file a claim against the estate.

File the estate’s tax return

Even if the estate is not liable for estate taxes, the executor has a duty to retain an attorney or an accountant to prepare the estate’s income tax return. It is important that the executor retain qualified professional help as early as possible to ensure that all of the relevant deadlines are met.

Distribute the estate’s assets

After all the debts of the estate of been paid and the time period is past for any unknown creditors to file a claim against the estate, the executor should prepare a final account and distribute the estate’s assets. When distributing the estate’s assets, the executor must first give away those gifts which are specifically identified in the will. These include specific gifts of property and specific dollar amounts (such as $10,000 to my nephew). After all of these gifts are accounted for, the executor should send out the final account to all legatees an interested parties. Once the executor receives approval from all such parties, he or she should distribute the remainder of the estate’s assets to the legatees.

This is a brief, general outline of some of the duties that the executor owes to the decedent’s estate and its beneficiaries. Every situation is different, and the executor must be careful to observe all the fiduciary duties he or she owes as different circumstances present themselves.

If you have been named as the Executor of an Estate, Hays Firm’s experienced attorneys can guide you through the process. Please feel free to contact us to discuss your situation.