Role of the Executor or Personal Representative
An executor is the person named by the creator of the Will (the testator) to carry out the terms and provisions of his or her Will. In addition to locating documents left by the testator (i.e., wills, trusts, deeds, etc.) and notifying Social Security, pension providers, annuity providers and other entities of the death, the executor has numerous other legal responsibilities, including:
- Initiating the probate of the Will
- Collecting and inventorying the testator's assets
- Collecting debts owed to the estate
- Paying claims against the estate
- Distributing assets to the beneficiaries of the Will
- Closing the estate
These responsibilities can be daunting and time-consuming. If you have been named the executor of an estate, contact Helsper, McCarty, and Rasmussen Law Firm to discuss your role and the South Dakota estate administration process.
Initiate Probate
It is the executor's duty to open up the estate and to begin probate proceedings. Typically, an executor who is not an attorney will hire a lawyer to represent the estate during the probate process, to provide the required notices to interested parties and potential creditors, to obtain required documents (such as the death certificate and an original copy of the Will), to deal with Will contestments, and to close the estate. Attorney costs for representing the estate, like executor fees, are charged against the estate.
Inventorying Assets
The executor is also responsible for completing an inventory of the assets of the estate. All probate assets must be collected and inventoried. Also, it may be necessary to have certain assets of the estate (such as jewelry or collectibles) appraised.
Collecting Debts and Payments Owed to the Estate
The executor should check with the decedent's former employer to determine whether there is any unpaid salary or benefits owed to the estate. The executor must also identify outstanding debts owed to the estate and pursue collection of those debts. Expenses involved in the collection of the debts (e.g., hiring a collection agency to collect debts) are charged to the estate.
Paying Claims Against the Estate
Once the Will is determined to be valid by the probate court, the executor may begin to pay taxes and other claims against the estate. While paying creditor claims is a task that can be handled by a non-attorney executor, paying taxes on behalf of the estate and of the decedent are often best left to an attorney hired for the probate and administration process.
Distributing Assets to Beneficiaries and Closing the Estate
Once all the creditor claims against the estate have been settled, the executor can then distribute the remainder of the estate to beneficiaries in accordance with the terms of the Will. When all of the creditors have been paid and the remainder of the estate has been distributed to the beneficiaries, the estate can be closed and the executor can be released from any further duties on behalf of the estate. A court will close the estate upon receiving:
- Copies of notices to concerned parties
- Copies of payments to creditors of the estate
- Evidence that remaining assets of the estate have been distributed
Any person over the age of 18 can be named an executor of a Will, provided that the person has not been convicted of a felony, and often times a family member or close friend is chosen to serve. However, settling an estate, even a simple one, involves numerous details and technical requirements that are often best left to an attorney. If you have been appointed as an executor of an estate, contact an attorney experienced in probate and estate administration at Helsper, McCarty, and Rasmussen Law Firm to ensure a thorough and professional handling of the probate process.