While the terms “executor” and “administrator” have minor distinctions under the law, they can generally be used interchangeably to refer to the person named in a Will to carry out the terms and provisions of the Will. If someone dies without a Will, Texas law prescribes a list of those people entitled to serve as the executor or administrator.
The Executor or Administrator has essentially 3 functions, which are as follows:
- Identify and Collect the assets of the Decedent’s estate;
- Pay any debts that the Decedent owed at the time of his or her death; and
- Distribute the remaining assets according to either the Will or pursuant to Texas law if the Decedent died without a Will.
Within each of the duties listed above, the Executor or Administrator is going to have numerous responsibilities. Many of these responsibilities will be the same regardless of the type of probate administration you have (either independent or dependent), but the duties can vary significantly and become much more difficult if the administration is dependent. For more information on the differences in the types of probate, please see the section of this website entitled “Types of Probate.”
Although the responsibilities of an executor can be daunting, you should better understand the functions of the Executor (listed above) and what is entailed under each of those responsibilities. Following is a discussion of each in more detail.
- Identifying/Collecting Assets: The Executor is responsible for identifying bank accounts, brokerage accounts, stock certificates, retirement accounts, real estate, personal property, household furnishing, cars, etc. that may have been owned by the Decedent at the time of his death. A listing of those assets will need to be provided to the Court (which is called the “Inventory”), so that the Court understands the full extent of the assets in the estate. Once all of the assets have been identified, the Executor must collect and protect those assets. For instance, the Executor will close bank accounts an open an account in the name of the Estate. Stock certificates will be safeguarded. Real estate will be secured and insured.
- Paying Debts: The Executor has the responsibility to receive and approve or deny all Claims filed by Creditors of the estate. Once the assets of the Estate have been collected and the creditor claims identified, then the Executor is going to have the responsibility to pay the outstanding debts of the estate. If the debts exceed the amount of assets in the estate, the Probate Code lays out the method by which the debts will be pro-rated, and each creditor will potentially receive only a portion of the debt outstanding to them.
- Distributing Remaining Assets: Once all of the assets have been collected and the debts paid, the Executor has the responsibility to distribute the remaining assets pursuant to the provisions of the Will, or if the Decedent died without a Will, then the assets are distributed according to the provisions of the Probate Code. Generally, the Executor should attempt to obtain a Receipt from each of the beneficiaries or heirs receiving a portion of the Estate. Those receipts should be filed with the Court as evidence that the Executor has correctly fulfilled his final duties.
- Compensation of the Executor: In Texas, the Probate Code provides that an executor or administrator is entitled to be compensated for their service to the Estate, unless the Decedent specifically denies compensation in his Will. The amount of the compensation will be determined either under the Will, or if no provision is included in the Will, then the Probate Code lays out a mechanism for determining the compensation.
The executor or administrator bears a substantial responsibility to the heirs and beneficiaries of the Estate, as well as a corresponding duty owed to Probate Court. Prior to agreeing to serve as the Executor, you should fully understand the responsibilities of doing so. If you are considering applying to be the Executor of an estate or have questions about your responsibilities for serving in that position, please feel free to contact the attorneys at Ford+Bergner, who will be glad to assist you in understanding these duties.
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[03/16] — F+B’s client was opposed to having a guardianship for her son. As a result of F+B’s aggressive, knowledgeable representation, our client received a spectacular result because the case was cut very short, and she achieved the complete result that she sought.
[03/16] — In January and February 2016, F+B attorney Thomas Horton won back to back trial victories in two different cases that had the same issue.
[02/16] — Ford + Bergner LLP recently won a significant victory for a large client in a small town in East Texas.