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What is an Executor?

Updated on May 5, 2010

A executor is a person or corporation named by the maker of a will, the testator, to carry out the provisions of the will. After the death of the testator, the person named as executor petitions to probate (prove) the will, demonstrates his competency to act, delivers any surety that may be required by law to discharge his duties, and obtains letters testamentary from the court empowering him to act as executor.

When a person dies without a valid will, an administrator is appointed by the court to manage the estate. The duties of an executor and of an administrator are basically similar: to collect the assets of the estate, pay the funeral and administration expenses and valid debts, determine and pay inheritance taxes, and administer the estate prudently. The distinctions between them are that the executor distributes in accordance with the provisions of the will, whereas the administrator distributes in accordance with the law to the statutory next of kin; the powers of an administrator are derived from his appointment, but those of an executor are derived from the will and begin at the death of the testator. In most jurisdictions, a nominated but not yet appointed executor may perform acts necessary to preserve the estate.

The selection of an executor is important because he is representative of the testator and owes undivided loyalty to the beneficiaries of the estate. In the many decisions an executor is called upon to make, he may be required to seek the advice of counsel, for his failure to perform his duties in a reasonable and prudent manner may cause him to be held personally liable. He must account to those interested, usually within a time fixed by law. Interested persons may object to his accounting and be heard by the court. Upon the settlement of the estate, the executor generally receives compensation for his services, usually by a percentage of the assets and in others for specific services rendered.

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