Executor Duties and Responsibilities

Executor Duties and Responsibilities

At some point in time, you may be asked to serve as the executor of the estate of a relative or friend, or you may ask someone to serve as your executor. An executor's job comes with many legal obligations. Under certain circumstances, an executor can even be held personally liable for unpaid estate taxes. Let's review the major duties involved, which we've set out below.
In General, the executor's job is to

1. Administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and 2. Distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the will).

Let's take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary.

Step 1: Probate. The executor must "probate" the will. Probate is a process by which a will is admitted. This means that the will is given legal effect by the court. The court's decision that the will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the will.

Step 2: Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on.

Step 3: Take Care of Tax Matters. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estate's income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceased's final income tax return (federal and state). Taxes usually must be paid before other debts. In many instances, federal estate-tax returns are not needed as the size of the estate will be under the amount for which a federal estate-tax return is required.

An employer identification number ("EIN") should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estate's behalf.

Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the "fair market" value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited.

Step 4: Pay the Debts. The claims of the estate's creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys', accountants' and appraisers' fees, must also be paid.

Step 5: Distribute the Assets. After all debts and expenses have been paid, the distribute the assets with extra attention and meticulous bookkeeping by the executor. Frequently, beneficiaries can receive partial distributions of their inheritance without having to wait for the closing of the estate.

WHO SHOULD SERVE AS EXECUTOR? The executor's legally imposed fiduciary duty is to act in all ways in the best interests of the estate and its beneficiaries. The duties of an executor can be difficult and challenging and should not be taken lightly.

We believe an executor needs not only the skills, training, and experience necessary to do the project--casual or part-time attention is not likely to achieve success.

Under increasingly complex laws and rulings, particularly with respect to taxes, an executor can be in charge for two or three years before the estate administration is completed. If the job is to be done without unnecessary cost and without causing undue hardship and delay for the beneficiaries of the estate, the executor should have an understanding of the many problems involved and an organization created for settling estates. In short, an executor should have experience.






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Kenneth Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appears in Courts throughout New Jersey each week for litigation and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer.

He is chair of the Elder Law Committee of the American Bar Association General Practice Division. He is also Editor of the ABA Estate Planning Probate Committee Newsletter and also the Criminal Law Committee newsletter. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award. And past Winner "General Practice Attorney of the Year" from the NJ State Bar Association. He is a 22 year active member of the American Bar Association. He is also a member of the ABA Real Property, Probate & Trust Section.

He established the NJlaws website www.njlaws.com which includes many articles on Elder Law. Mr. Vercammen received his B.S., cum laude, from the University of Scranton and his J.D. from Widener/Delaware Law School, where he was the Case Note Editor of the Delaware Law Forum, a member of the Law Review and the winner of the Delaware Trial Competition.

RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE

Edison Adult School -Wills, Elder Law & Probate- 2007, 2006, 2005, 2004, 2003, 2002 [inc Edison TV], 2001, 2000,1999,1998,1997
Nuts & Bolts of Elder Law - NJ Institute for Continuing Legal Education/ NJ State Bar ICLE/NJSBA 2007, 2006, 2005, 2004, 2003, 2002, 2000, 1999, 1996
Elder Law and Estate Planning- American Bar Association Miami 2007
Elder Law Practice, New Ethical Ideas to Improve Your Practice by Giving Clients What They Want and Need American Bar Association Hawaii 2006
South Plainfield Seniors- New Probate Law 2005, East Brunswick Seniors- New Probate Law 2005
Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecilia/ Woodbridge Seniors 2002;
East Brunswick/ Hall's Corner 2002;
Linden AARP 2002
Woodbridge Adult School -Wills and Estate Administration -2001, 2000, 1999, 1998, 1997, 1996
Woodbridge Housing 2001; Metuchen Seniors & Metuchen TV 2001; Frigidare/ Local 401 Edison 2001; Chelsea/ East Brunswick 2001, Village Court/ Edison 2001; Old Bridge Rotary 2001; Sacred Heart/ South Amboy 2001; Livingston Manor/ New Brunswick 2001; Sunrise East Brunswick 2001; Strawberry Hill/ Woodbridge 2001;
Wills and Elder Law - Metuchen Adult School 1999,1997,1996,1995,1994,1993
Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002, 1995
AARP Participating Attorney in Legal Plan for NJ AARP members 1999-2005
Senior Legal Points University of Medicine & Dentistry UMDNJ & St. Peter's-2000, 1999,1998
East Brunswick AARP Wills 2001; -Iselin/ Woodbridge AARP Wills 2000
Metuchen Reformed Church; Franklin/ Somerset/ Quailbrook Seniors 2001
North Brunswick Senior Day 2001
Wills, Elder Law and Probate-South Brunswick Adult School & Channel 28 TV 1999, 1997,1993
Wills and Estate Planning-Old Bridge Adult School 1998,1997,1995
Senior Citizen Law-Perth Amboy YMHA 1995; Temple Beth Or 2002;
Wills, Living Wills and Probate-Spotswood Community School 1995,1994,1993
Wills and Probate-Sayreville Adult School 1997, 1996,1995,1994
Living Wills-New Jersey State Bar Foundation and St. Demetrius, Carteret 1994
Wills and Estate Planning-Edison Elks and Senior Citizens January 1994
"Legal Questions Clinic" Metuchen Adult School March 1995,1994,1993
Estate Planning to Protect Families-Metuchen Chamber of Commerce April 1993
BUSINESS AND AMERICAN BAR ASSOCIATION SPEAKING ENGAGEMENTS:
Improving Your Elder Law & Estate Practice San Francisco, CA 2007
Elder Law and Estate Planning- ABA Miami 2007
Elder Law Practice, New Ethical Ideas to Improve Your Practice by Giving Clients What They Want and Need ABA Hawaii 2006
Marketing Success Stories ABA Toronto 1998
Opening a Business-Sayreville Adult School 1997,1996,1995
Olympians of Marketing- ABA Annual Meeting-Orlando, Florida 1996

Contact the Law Office of
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