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An executor, in the broadest sense, is one who carries something out (in other words, one who is responsible for executing a task).
Executor is also a legal term referring to a person named by a maker of a will, or nominated by the testator, to carry out the directions of the will. Typically, the executor is the person responsible for offering the will for probate, although it is not absolutely required that he or she do so. The executor's duties also include the disbursement of property to the beneficiaries as designated in the will, obtaining information about any other potential heirs, collecting and arranging for payment of debts of the estate and approving or disapproving creditors' claims. An executor also makes sure estate taxes are calculated, necessary forms are filed and tax payments made, and in all ways assists the attorney for the estate. Also the executor makes all donations as left in bequests to charitable and other organizations as directed in the will. In most circumstances the executor is the representative of the estate for all purposes, and has the ability to sue or be sued on behalf of the estate. The executor also holds legal title to the estate property, but may not use that property for the executor's own benefit unless expressly permitted by the terms of the will.
A person who deals with a deceased person's property without proper authority is known as an executor de son tort. Such a person's actions may subsequently be ratified by the lawful executors or administrators if the actions do not contradict the substantive provisions of the deceased's will or the rights of heirs at law.
Where there is no will, a person is said to have died intestate—"without testimony". As a result, there can be no actual 'testimony' to follow, and hence there can be no executor. If there is no will or where the executors named in a will do not wish to act, an administrator of the deceased's estate may instead be appointed. The generic term for executors or administrators is personal representative. In England and Wales, when a person dies intestate in a nursing home, and has no family members who can be traced, those responsible for their care automatically become their executors.
Under Scottish law, a personal representative of any kind is referred to as an executor, using executor nominate to refer to an executor and executor dative to an administrator.
An executor has no automatic entitlement to be paid as that would conflict with their duties to manage the affairs in the best financial interests of the estate. Nonetheless, compensation can be directed within the will or on application to a court. In the latter case, many jurisdictions set limits on reasonable compensation.
In recent years, custom "executors' insurance" policies have entered the marketplace. These are currently available in countries including Canada, England and Wales. They are often taken up by non-professional executors - typically friends or family of the deceased - who may be worried about the potential of making an error during the probate process and uncomfortable about exposing themselves to unlimited personal financial and legal liability. Many find such cover an attractive proposition as the vast majority of wills allow reasonable expenses, such as the cost of the policy, to be reclaimed from the deceased's estate.
See also↑Jump back a section
- Hurren, Elizabeth (May 2002). "Patients' rights: from Alder Hey to the Nuremberg Code". History & Policy (in English). United Kingdom: History & Policy. Retrieved 9 December 2010.
- Executor Pay: Fees for the Executor or Administrator of an Estate, duhaime.org retrieved 19 January 2012
- Executor of a will duties - A list of duties for a Will Executor (England & Wales only)