Executor and Administrator Duties in Probate: A Paralegal Study Guide

Who Is the Personal Representative?

When a person dies, someone must collect the decedent's assets, pay valid debts and taxes, and distribute what remains to the rightful heirs or beneficiaries. That person is called the personal representative. If the will names the individual, that person is called an executor (historically, an executrix for a woman). If there is no will, or the named executor cannot or will not serve, the court appoints an administrator. Many modern probate codes use the single term personal representative for both roles, but the paralegal exam often uses the traditional terminology.

A personal representative is a fiduciary, which means they owe the highest duties of loyalty, care, and impartiality to the estate and its beneficiaries and creditors. Failure to meet those duties can result in personal liability, removal, and surcharge.

Executor Versus Administrator

• Executor: Named in the decedent's will and nominated by the testator. The court issues letters testamentary after admitting the will to probate.
• Administrator: Appointed by the court when no will exists (intestacy) or no executor can serve. The court issues letters of administration, and priority generally goes to the surviving spouse, then children, then other relatives.
• Administrator with the will annexed (administrator c.t.a.): Appointed when a will exists but the named executor cannot serve.
• Special or ancillary administrator: Appointed for limited purposes or to handle assets located in another state.

Core Duties of the Personal Representative

1. Open the Estate and Obtain Authority

The process begins by filing a petition with the probate court, submitting the original will if one exists, and the death certificate. After notice to interested persons and a hearing, the court appoints the representative and issues letters, the official document proving authority to act. The representative may be required to post a bond to protect the estate, although wills often waive this requirement.

2. Locate, Secure, and Inventory Assets

The representative must identify all probate assets, secure property such as real estate and vehicles, and file an inventory with the court within the time required by statute. Assets include bank accounts, securities, real property, tangible personal property, business interests, and claims owed to the decedent. Many states require appraisals of real property and unusual assets. Non-probate assets, such as life insurance with named beneficiaries, joint tenancy property, and retirement accounts, pass outside the estate and are not part of the probate inventory, although they may matter for tax purposes.

3. Notify Heirs, Beneficiaries, and Creditors

The representative must give notice to heirs and beneficiaries. They also publish notice to creditors and send direct notice to known creditors. Statutes set claim deadlines, often three to six months after publication, after which late claims are barred. The representative reviews each claim and allows or disputes it.

4. Manage and Preserve Estate Property

The representative must manage assets prudently. This includes keeping property insured, maintaining real estate, collecting rents and debts owed to the estate, and investing cash conservatively. The representative must not commingle estate funds with personal funds and should open a separate estate account using the estate's tax identification number.

5. Pay Debts, Expenses, and Taxes

The representative pays valid claims in the order of priority set by statute. Typically, administration expenses and funeral costs come first, followed by taxes and certain debts, with general unsecured creditors last. The representative must file the decedent's final income tax return, the estate's fiduciary income tax return, and, when applicable, federal and state estate tax returns. Paying beneficiaries before settling debts can expose the representative to personal liability.

6. Account to the Court and Beneficiaries

The representative keeps detailed records of all receipts and disbursements and provides an accounting to the court and interested persons. Formal accountings show beginning assets, income, expenses, distributions, and ending balances.

7. Distribute the Estate

After claims and taxes are resolved, the representative distributes the remaining property according to the will or intestacy statute. Distribution is followed by a final accounting, receipts from beneficiaries, a petition for discharge, and closing of the estate.

Fiduciary Standards

• Duty of loyalty: No self-dealing, such as purchasing estate property without court approval or beneficiary consent.
• Duty of care: Act as a prudent person would with their own property.
• Duty of impartiality: Treat beneficiaries fairly and avoid favoritism.
• Duty to inform: Keep beneficiaries reasonably informed about the estate.

Compensation and Removal

A personal representative is entitled to reasonable compensation, set by statute, a percentage schedule, or the court. A family member may waive the fee. The court may remove a representative who mismanages the estate, has a conflict of interest, becomes incapacitated, or fails to act. Beneficiaries can petition for removal and for a surcharge to recover losses.

Informal Versus Formal Probate and Small Estates

Many states offer streamlined proceedings. Informal probate under the Uniform Probate Code involves minimal court supervision. Small estates may be settled using a small estate affidavit without opening a full probate. Paralegals should know the dollar limits and procedures in their state.

How Paralegals Help

Under attorney supervision, paralegals prepare petitions, notices, inventories, claims schedules, tax filings, and accountings. They also communicate with banks, track deadlines, and organize records. Accuracy in deadlines is crucial because missed notice dates can expose the estate to later claims.

Frequently Asked Questions

Can an executor also be a beneficiary?

Yes. It is common for a spouse or child to serve as executor and also inherit. The duties of loyalty and impartiality still apply.

What are letters testamentary?

They are the court-issued document proving the executor's authority, which banks and title companies require before releasing assets.

Does the executor have to pay the decedent's debts personally?

Not normally. Debts are paid from estate assets. A representative may become personally liable only for improper distributions or breach of duty.

How long does probate take?

Simple estates may close within six to twelve months, while complex estates with taxes or disputes can take years.

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