Republished with Permission © 2010 Nolo.
Get the answers you need if someone’s will names you as the executor of their estate.
The executor (called a personal representative in some states) is the person named in a will or appointed by a court to wind up the person’s financial affairs after death. Basically, that means taking care of property, paying bills and taxes, and seeing to it that assets are transferred to their new rightful owners. If probate court proceedings are required, as they often are, the executor must handle them or hire a lawyer to do it.
No. When it comes time, an executor can accept or decline this responsibility, and someone who agrees to serve can resign at any time. If the will named an alternate executor, that person will take over. If not, the court will appoint someone to step in.
The main reason most people serve as an executor is to honor the deceased person’s request. However, the executor is also entitled to payment. The exact amount is regulated by state law and is affected by factors such as the value of the deceased person’s property and what the probate court decides is reasonable under the circumstances. Commonly, close relatives and close friends (especially those who are inheriting a substantial amount anyway) don’t charge the estate for their services.
Not always. Doing a good job requires persistence and attention to tedious detail, but not necessarily a law degree. If assets must go through probate court, the process is mainly paperwork. In the vast majority of cases, there are no disputes that require a decision by a judge and the executor may never see the inside of a courtroom. It may even be possible to do everything by mail. (To learn more about the duties of an executor, see the article What Does an Executor Do?)
An executor can probably handle the paperwork without a lawyer if he or she is the main beneficiary, the deceased person’s property consists of common kinds of assets (house, bank accounts, insurance), the will seems straightforward, and good self-help materials are at hand. (One good book is The Executor’s Guide , by Mary Randolph (Nolo), which guides executors through the process of winding up a loved one’s estate, step by step.)
If, however, the estate has many types of property, significant tax liability, or potential disputes among inheritors, an executor may want some help.
Basically, there are two ways for an executor to get help from a lawyer:
- Hire a lawyer to act as a “coach,” answering legal questions as they come up. The lawyer might also do some research, look over documents before the executor files them, or prepare an estate tax return.
- Turn the probate over to the lawyer. If the executor just doesn’t want to deal with the probate court process, a lawyer can do everything. (The executor is still responsible for making decisions about what to do, though, with the lawyer’s advice.) The lawyer will be paid out of the estate. In most states, lawyers charge by the hour ($175-$300 is common) or charge a lump sum, but in a few places, including Arkansas, California, Delaware, Hawaii, Iowa, Missouri, Montana, and Wyoming, state law authorizes the lawyer to take a certain percentage of the gross value of the deceased person’s estate, unless the executor makes a written agreement calling for less. An executor can probably find a competent lawyer who will agree to a lower fee.
Yes. Here are some other sources of information and assistance.
- The court. Probate court clerks commonly answer basic questions about court procedure, but they staunchly avoid saying anything that could possibly be construed as “legal advice.” Some courts, however, have lawyers on staff who look over probate documents, point out errors in the papers, and explain how to fix them.
- Other professionals . For certain tasks, an executor may be better off hiring an accountant or appraiser than a lawyer. For example, a CPA may be a big help on estate tax matters.
- Nonlawyer document preparers. Many lawyers delegate probate paperwork to paralegals. Now, in some areas of the country, experienced paralegals have set up shop to help people directly with probate paperwork. These people don’t offer legal advice, they just prepare documents as the executor instructs them and file them with the court. To find one, an executor can look online or in the Yellow Pages under “Legal Document Preparation” or “Attorney Services.” The executor should hire someone only if that person has substantial experience in this field and provides good references.
- Books . The Executor’s Guide , by attorney Mary Randolph (Nolo) guides executors through the process of winding up a loved one’s estate, step by step.