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An executor is someone who is responsible for executing, or following through on, an assigned task or duty. The feminine form, executrix, may sometimes be used.
An executor is a legal term referring to a person named by the maker of a will or nominated by the testator to carry out the instructions of the will. Typically, the executor is the person responsible for offering the will for probate, although it is not required that they fulfill this. The executor's duties also include handing over property to the beneficiaries as designated in the will, obtaining information of potential heirs, collecting and arranging for payment of debts of the estate and approving or disapproving creditors' claims.
An executor will make sure estate taxes are calculated, necessary forms are filed, and the corresponding payments are made. They will also assist the attorney with the estate. Additionally, the executor acts as a legal conveyor who designates where the donations will be sent using the information left in bequests, whether they be sent to charity or other organizations. 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 holds legal title to the estate property, but may not use the title or property for their own benefit, unless 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.
When there is no will, a person is said to have died intestate—"without testimony." As a result, there is no tangible "testimony" to follow, and hence there can be no executor. If there is no Will or the person appointed as the Executor is unable or unwilling to act, an Administrator takes on the same role. 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.
Any person designated as an executor may choose not to administer the estate. In the U.K., upon making that choice the designated person may execute a "power reserved" letter, which will allow the person to later act as executor if the person named on the Grant of Probate is removed or is no longer able to act. [1]
In some countries, such as the United States, an executor is automatically entitled to compensation for his or her services, although this amount varies dramatically by jurisdiction. Unless specifically set by the will, this compensation is often determined by what is considered ″reasonable″ for the effort involved, although in a number of jurisdictions, the amount is instead set as a percentage of the overall estate. For example, in California the executor is entitled to 4% of the first $100K of estate value, 3% of the next $100K, and so on. In other countries, such as the United Kingdom, the executor is not automatically entitled to compensation, although compensation can be directed within the will or on application to a court. [2]
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 potentially making an error during the probate process and/or 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.
A will and testament is a legal document that expresses a person's (testator) wishes as to how their property (estate) is to be distributed after their death and as to which person (executor) is to manage the property until its final distribution. For the distribution (devolution) of property not determined by a will, see inheritance and intestacy.
Escheat is a common law doctrine that transfers the real property of a person who has died without heirs to the crown or state. It serves to ensure that property is not left in "limbo" without recognized ownership. It originally applied to a number of situations where a legal interest in land was destroyed by operation of law, so that the ownership of the land reverted to the immediately superior feudal lord.
Intestacy is the condition of the estate of a person who dies without having in force a valid will or other binding declaration. Alternatively this may also apply where a will or declaration has been made, but only applies to part of the estate; the remaining estate forms the "intestate estate". Intestacy law, also referred to as the law of descent and distribution, refers to the body of law that determines who is entitled to the property from the estate under the rules of inheritance.
In common law and statutory law, a life estate is the ownership of immovable property for the duration of a person's life. In legal terms, it is an estate in real property that ends at death, when the property rights may revert to the original owner or to another person. The owner of a life estate is called a "life tenant". The person who will take over the rights upon death is said to have a "remainder" interest and is known as a "remainderman".
In common law jurisdictions, probate is the judicial process whereby a will is "proved" in a court of law and accepted as a valid public document that is the true last testament of the deceased, or whereby the estate is settled according to the laws of intestacy in the state of residence of the deceased at time of death in the absence of a legal will.
A dead man's statute, also known as a dead man act or dead man's rule, is a statute designed to prevent perjury in a civil case by prohibiting a witness who is an interested party from testifying about communications or transactions with a deceased person against the decedent unless there is a waiver.
De bonis non administratis, Latin for "of goods not administered," is a legal term for assets remaining in an estate after the death or removal of the estate administrator. The second administrator is called the administrator de bonis non and distributes the remaining assets. In the United States's Uniform Probate Code, these titles have been replaced by successor personal representative.
Unowned property includes tangible, physical things that are capable of being reduced to being property owned by a person but are not owned by anyone. Bona vacantia is a legal concept associated with the unowned property, which exists in various jurisdictions, with a consequently varying application, but with origins mostly in English law.
In the law of property, a pretermitted heir is a person who would likely stand to inherit under a will, except that the testator did not include the person in the testator's will. Omission may occur because the testator did not know of the omitted person at the time the will was written.
In the law of inheritance, wills and trusts, a disclaimer of interest is an attempt by a person to renounce their legal right to benefit from an inheritance or through a trust. "If a trustee disclaims an interest in property that otherwise would have become trust property, the interest does not become trust property."
In common law jurisdictions, a personal representative or legal personal representative is a person appointed by a court to administer the estate of another person. If the estate being administered is that of a deceased person, the personal representative is either an executor if the deceased person left a will or an administrator of an intestate estate. In other situations, the personal representative may be a guardian or trustee, or other position. As a fiduciary, a personal representative has the duties of loyalty, candor or honesty, and good faith. In the United States, punctilio of honor, or the highest standard of honor, is the level of scrupulousness that a fiduciary must abide by.
Letters of Administration are granted by a surrogate court or probate registry to appoint appropriate people to deal with a deceased person's estate where property will pass under intestacy rules or where there are no executors living having been validly appointed under the deceased's will. Traditionally, letters of administration granted to a representative of a testator's estate are called "letters of administration with the will annexed" or "letters of administration cum testamento annexo" or "c.t.a.".
The administrator of an estate is a legal term referring to a person appointed by a court to administer the estate of a deceased person who left no will. Where a person dies intestate, i.e., without a will, the court may appoint a person to settle their debts, pay any necessary taxes and funeral expenses, and distribute the remainder according to the procedure set down by law. Such a person is known as the administrator of the estate and will enjoy similar powers to those of an executor under a will.
In common-law jurisdictions, administration of an estate on death arises if the deceased is legally intestate, meaning they did not leave a will, or some assets are not disposed of by their will.
A probate court is a court that has competence in a jurisdiction to deal with matters of probate and the administration of estates. In some jurisdictions, such courts may be referred to as Orphans' Courts or courts of ordinary. In some jurisdictions probate court functions are performed by a chancery court or another court of equity, or as a part or division of another court.
In the law of inheritance, a laughing heir is an heir who is legally entitled to inherit the property of a person who has died, even though that heir is only distantly related to the deceased, and therefore has no personal connection or reason to feel bereaved over the death.
Advancement is a common law doctrine of intestate succession that presumes that gifts given to a person's heir during that person's life are intended as an advance on what that heir would inherit upon the death of the parent. Not to be confused with an advance of someone's expected distribution from an estate currently in probate.
Share transmission is a mechanism by which the title to shares is devolved other than by transfer. This is typically applicable for:
Inheritance law in Canada is constitutionally a provincial matter. Therefore, the laws governing inheritance in Canada is legislated by each individual province.
The South African law of succession prescribes the rules which determine the devolution of a person's estate after his death, and all matters incidental thereto. It identifies the beneficiaries who are entitled to succeed to the deceased's estate, and the extent of the benefits they are to receive, and determines the different rights and duties that persons may have in a deceased's estate. It forms part of private law.
