Home About Writers Categories Recent Issues Subscribe Contact File Transfer





Linda Kirby
Linda Kirby has been a practicing attorney in Wichita since 1988, and is running for Sedgwick County District Court Judge in the 2012 Primary. Previously, Ms. Kirby was Professor of Law at the University of Richmond. She teaches seminars on Executor's Training, Estate Planning, Pre-Marital Agreements and Retirement Planning. Ms. Kirby focuses her legal practice in the areas of Estate Planning, Pre-Marital Agreements, Wills, Trusts, Probate and Tax. She is the author of The Executor's Guide. Ms Kirby can be contacted at (316) 686-2000. Her office is located at 6135 East Central, Wichita, KS 67208, and her website is at www.LindaKirby.com.
Legal
2002-09-01 10:41:00
What does an executor do?
:  My 85-year old mother has been living with me for the past three years.  She is in good health, usually has a clear mind but sometimes forgets things.  I am already on her bank account so that I can pay her bills.  I have a brother in town who helps with mother when he can and a sister who lives out of state.  My mother asked me to be the Executor of her Will.  She told me that her Will gives one-half of her estate to me and one-fourth each to my brother and my sister.  Can you tell me what an Executor does?
Linda Kirby Question:  My 85-year old mother has been living with me for the past three years.  She is in good health, usually has a clear mind but sometimes forgets things.  I am already on her bank account so that I can pay her bills.  I have a brother in town who helps with mother when he can and a sister who lives out of state.  My mother asked me to be the Executor of her Will.  She told me that her Will gives one-half of her estate to me and one-fourth each to my brother and my sister.  Can you tell me what an Executor does?Answer:  Being named as an Executor is an expression of your mother's trust in your honesty and her confidence in your ability to handle property and to resolve conflicts.  However, you are wise to question exactly what will be expected of you as an Executor.  Your official duties as Executor begin when the court appoints you Executor and signs the Letters Testamentary.YOU MUST FILE THE WILL.  If you have your mother's Will or know where it is, you have a duty to properly present it to the court after her death.  In order to properly present the Will to the court, you must file a petition or request for the court to determine that this is the valid Will and to appoint you as the Executor.  (If there are no probate assets, the Will can be preserved without a full probate proceeding.)  This Petition must follow all the state laws regarding Wills and proper notice must be given to all interested parties.YOU MAY REFUSE TO SERVE AS THE EXECUTOR.  Even though the Will names you as the Executor, you do not have to serve.  If you are unable or choose not to serve, the court will appoint the person named as the Successor or Alternate Executor in the Will or the court will appoint an Administrator C.T.A. to handle the Will.YOUR FIRST DUTY AS EXECUTOR IS TO ACT IN THE BEST INTEREST OF THE ESTATE.  This means that you must follow all the state laws and the directions in the Will to disburse the assets of the estate to pay creditors, taxes and expenses as well as distribute the gifts given in the Will.  This duty is called a fiduciary duty.  You must make all reasonable efforts to discover what the law and the Will require or you will be held personally liable for your mistakes.  Your good intentions and ignorance of the law will not protect you.USE YOUR POWER AS EXECUTOR VERY CAREFULLY.  The Letters Testamentary signed by the court allows you to act as the absolute owner of the estate property.  You may sell, liquidate and transfer all the assets on your own signature.  You answer only to the court.  However, this broad power is to be used only to carry out the law and the instructions in the Will.  The Executor is not permitted to enforce personal choices or opinions with the estate assets.  Let me give you a couple of examples of well-intentioned mistakes that might surprise you.The Executor, trying to do a good job by being prompt and thorough, pays the estate's bills as they arrive in the mail.  Within the first week of her appointment the Executor receives and pays the credit card, care home and pharmacy bills which total $15,000.  There is now only $1,000 left in the estate.  The funeral bill that must be paid within 30 days is $5,000, the hospital bill that arrives after insurance has paid its part is $1,500 and the expenses of administration that will be paid at the close of the case are expected to be about $2,000.  These unpaid bills of $8,500 are first, second and third class expenses and have priority over the fourth class credit card, care home and pharmacy bills that the Executor has already paid.  Even though the Executor meant well, she must either recover the overpayments from the credit card company, care home and pharmacy or pay the $7,500 from her own pocket.Another common example of an expensive mistake that an Executor with good intentions can make occurs when the Executor distributes assets to those named in the Will before the court has ordered distribution.  If there is not enough value in the estate to pay the expenses, debts, claims and taxes, all the assets, including the personal property, must be sold.  The Executor will have to recover any assets given away or pay the value of those out of his own pocket.  TO PROTECT YOURSELF AND THE ESTATE, GET GOOD LEGAL ADVICE.A probate proceeding may take from six months to a year (and if there are special problems such as tax or ownership issues, it may take longer) to complete all the necessary steps.  Because at death each individual has different property and unique heirs, devises and legatees, no two cases are alike.  What follows is an overview of the duties of the Executor.DUTIES OF THE EXECUTOR-HAVE THE ESTATE ATTORNEY FILE ALL THE REQUIRED LEGAL PAPERS.-TAKE POSSESSION OF ALL THE DECEDENT'S ASSETS, PROPERTY AND MONEY-MAKE A COMPLETE INVENTORY WITH LEGAL DESCRIPTIONS AND DATE OF DEATH VALUES-MANAGE, INVEST OR SELL ALL THE ASSETS-FILE ALL NECESSARY FORMS AND RETURNS (There may be as many as 11 different types due.)-DETERMINE WHICH CREDITORS AND TAXING AGENCIES ARE TO BE PAID-DETERMINE THE DISTRIBUTION OF THE ESTATE-TRANSFER THE ESTATE'S ASSETS-COMPLETE FINAL ACCOUNTINGS AND CLOSE THE ESTATEDear Reader, you are fortunate that you still have your mother with you.  It would be wise to review your mother's Will with her to assure that all the necessary powers are included to reduce the cost of handling the estate.  It is also a good idea to make a complete list of her assets, their location and an estimated value while your mother can assist you.  Beware of the verbal instructions that your mother may give you.  Those words have no legal effect and may be difficult or impossible to carry out.  Help your mother assure that all her wishes are clearly written in her Will.
 
The Q & A Times Journal accepts no responsibility for unsolicited manuscripts or photographs.Materials will not be returned unless accompanied by a stamped, self-addressed envelope. Thank you.
 
Wildcard SSL Certificates