My cousin told me that she named me as her executor in her will. What does an executor do, and what are the duties and responsibilities? If I really do not want the responsibility or to take on the role, if and when the time comes, can I decline or resign from being executor?
As executor (thankfully, female fiduciaries are no longer referred to as an “executorix”) once appointed by the Surrogate’s Court, you would be obligated to carry out the provisions of the will and administer the estate. That means marshaling the assets of the decedent, paying her expenses, and distributing the remaining assets as the she intended. It can also mean resolving any claims against the estate. Some (but certainly not all) of the duties of an executor may include the following:
• Locate and notify witnesses to the will.
• Notify post office to forward mail.
• Secure the decedent’s residence or home, as well as any firearms.
• Make sure house and other buildings have fuel during the winter months.
• Open a checking account or saving account for the estate.
• Discontinue unneeded utilities.
• Examine the contents of safe deposit box accompanied by the estate’s attorney.
• Search for valuable papers and assets.
• Inspect all real estate and locate mortgages, and leases affecting the property.
• Examine all life insurance, real estate, and personal property insurance policies.
• Select qualified appraisers for all property to be sold.
• Investigate possibility of profit-sharing or pension death benefits.
• Review income tax returns for the past three years.
• Make sure all tax returns are filed on time.
• File the required inventory of decedent’s assets with the court within six months of the date of appointment.
• Prepare formal or informal accounting as the case may require, and distribute the assets of the estate to the person or persons entitled to them.
• Obtain receipts and releases or waiver of citation from beneficiaries, and submit decree settling account where format account and decree are necessary.
An executor is entitled to compensation in the form of commissions for her service. Commissions are usually paid out of the estate after the distributions have taken place and subject to approval of either the court or the beneficiaries of your estate. Commissions are based upon a statutory commission rate as follows: five percent on the first $100,000 in the estate, four percent on the next $200,000, three percent on the next $700,000, two-and-a-half percent on the next $4,000,000, and two percent on any amount above $5,000,000.
Executors usually retain the services of trusts’ and estates’ counsel to help guide them through the process.
As for the second part of your question, just because you are nominated as executor in someone’s will does not mean that you must accept this responsibility. Unless you believe that the person appointing you will be seriously offended, you can simply advise her that you do not wish to act as executor and suggest that she execute a revised will. Alternatively, upon the person’s death, you can renounce your rights as executor and decline to act. If the will nominates a successor executor, that individual would then have the right to seek to probate the will. You could also probate the will but ask that someone else be appointed. It is advisable to pursue one of these options rather than the option of seeking to resign as executor once you have been appointed by the court.
If an executor who has already been appointed as such by the Surrogate’s Court wishes to resign, she must file a written application with the court seeking judicial permission to resign. In an application for permission to resign as executor, the applicant must demonstrate “good cause,” and the decision of whether the individual will be permitted to resign rests in the discretion of the court. Generally, the court will evaluate whether the executor’s request to resign is in the best interests of the estate. If the executor is unable to establish that the resignation is in the best interests of the estate, the court may deny the request. In addition, in order to resign, an executor must settle the estate account.
It is best to have an honest discussion with the person appointing you before she does so. That said, it is frequently the case that someone has the desire to serve when asked, but at the time she is needed, her circumstances have changed.
Alison Arden Besunder is the founding attorney of the law firm of Arden Besunder P.C., where she assists new and not-so-new parents with their estate planning needs. Her firm assists clients in Manhattan, Brooklyn, Queens, Nassau, and Suffolk Counties. You can find Alison Besunder on Twitter @estatetrustplan and on her website at www.besun