Important Questions You Should Ask Before being Appointed as an Executor or Administrator of a Decedent's Estate
The terms Executor and Administrator both refer to a person who has been appointed as the personal representative of a decedent's estate. An Executor is someone who is appointed by virtue of being named to that position in the decedent’s will. An Administrator is someone who is appointed for the estate of a decedent who died intestate (without a will). An Executor or Administrator is appointed by the Register of Wills in the county of the decedent’s domicile. This is done by filing a petition along with the original will, if applicable, and other documents.
When someone is appointed as an Executor or Administrator, he or she must take an oath, at the time of filing the petition and will (probating the will), swearing or affirming that he/she will faithfully carry out the duties of that position. Once appointed, the Executor or Administrator has a duty to act for the best interests of the estate heirs and to administer the estate in accordance with law. By assuming this duty, the Executor or Administrator is held to a standard of care defined as one of such common skill, judgment and caution as persons of ordinary prudence, discretion and intelligence under similar circumstances, would exercise in the management of their own estate. An Executor or Administrator can be held personally liable for failing to use common skill, judgment or caution.
The duties of an Executor or Administrator do not arise until a person is appointed. Being named as an executor in a will does not create obligations for that person, the actual appointment by the Register of Wills does. Therefore it is not wise for a person to petition the Register of Wills for appointment without understanding his or her potential obligations. Before seeking appointment, a person should, at a minimum, do all of the following:
- Thoroughly review the decedents will and any trust if applicable.
- If there is no will, determine who the correct heirs will be.
- Consider if there are factors which might make a will contest likely.
- Ascertain the size and nature of the estate assets and debts, to the extent possible.
- Determine if there are unique assets or ones that may prove difficult to value or liquidate.
- Determine which county has jurisdiction to appoint the Executor/Administrator.
- Determine if administration of the estate is necessary.
Determine if an agent under a power of attorney was acting on behalf of the decedent prior to his death, along with the name and contact information for that person.Performing these investigations will often lead to more questions and reasons for further investigation.
Becoming appointed as Executor or Administrator in an estate without enough assets to pay all creditors is a very difficult job. An Executor or Administrator can be held personally liable if there is not sufficient money in an estate to pay all creditors' claims and the Executor or Administrator pays the claims contrary to the priority each has by law. An Executor/Administrator can also be personally liable for not properly preserving the assets of the estate or otherwise jeopardizing the rights of beneficiaries.
For all of these reasons, it is advisable to obtain legal advice from a knowledgeable and experienced estate lawyer prior to seeking appointment as an Executor or Administrator. He can help you answer these questions and fully explain to you the roll of executor or administrator and the estate administration process. Our Pottstown law firm has a team of experienced estate lawyers and you can contact us at 610-323-7464.