Understanding the Role of The Executor/Executrix or Administrator: A Checklist of Their Responsibilities Under the Law
Here is an Easy to Follow Checklist of Responsibilities for an Executor or Administrator to Follow When Handling an Estate:
The primary goal of probate is to have the County Surrogate formally approve the Last Will and Testament of a deceased person and to appoint the individual named in the Will to serve as the Executor or Executrix. The Surrogate does this by issuing letters of Executorship to the person named in the Last Will. These letters of Executorship serve as legal proof that the named person appointed as the Estate’s representative or appointed by a Probate Judge has the legal authority to act on behalf of the Estate in order to finalize the affairs of the Estate and further the instructions of the decedent as expressed in the Will. An executor or administrator needs proof of his or her authority when dealing with creditors, banks, custodians, government agencies, and all third parties.
When a person is named an executor or administrator (also known as a personal representative), they are given the responsibility of settling the final affairs of a decedent. Essentially, an executor is accountable to identify and then protect a deceased person’s assets and property until all debts and taxes have been paid, and then to ensure that the assets and property are transferred to the persons entitled to receive it (called beneficiaries).
The law does not demand an executor/executrix or appointed administrator to be a legal or financial expert, but it does require the highest degree of honesty, impartiality, and diligence upon this person. This responsibility is called a “fiduciary duty” – the legal duty to act solely in the best interests of another or others.
When a Will is probated, all beneficiaries named in the Will (and next of kin) must be notified by the executor in writing that the Will has been probated. The executor is legally obligated to diligently research and find the whereabouts of all property owned by the deceased at the time of death and the whereabouts of all beneficiaries and next of kin named under the Last Will.
The Executor must also open an estate checking account with a bank or other depository for estate monies and assets. An application for a Federal Tax I.D. number for the Estate and other formalities are required under the New Jersey Probate Code and should be diligently followed by the executor/administrator as part of his or her statutory obligations.
Probating a Lost Will: Here’s What to Do
Following a death family members will often ask, “What if I can’t find the original Will”, meaning “can we probate a copy of a lost original Last Will and Testament”? The answer is yes unless there is a dispute about the contents of the Will or why the original Will cannot be found.
The law presumes that if an original Last Will cannot be located then the testator (the person who signed the Will) intentionally destroyed it because it no longer represented his or her wishes. But, what if that isn’t the case, it’s as simple as being lost or misplaced?
In either case, a copy of the Original Will can be admitted to probate but not as easy as probating an original Will with the Surrogate’s Office. A Judge must review the circumstances surrounding the absence of the original Will and decide whether it is likely that the testator destroyed the Will or that it was simply lost.
The Process of Probating a Last Will
The Executor named in the Will must file a Complaint in Superior Court asking the Probate Judge to issue an order permitting the probate of the Will’s copy. In support of the application, the named Executor must explain what efforts he or she made to locate the original Will. It is helpful to explain what is known about where the Will was kept and the last time anyone saw it. For example, the Testator may have moved his/her residence and boxes of documents may have been misplaced or destroyed. All of the details known about the last location of the original Will and the efforts made to locate it are explained to the Judge in writing by way of certification.
Once a copy of the Will is admitted the probate process is the same as when an original Will is probated. Once approved judicial involvement ends.
Another option is to proceed without the Will in accordance with the intestacy laws. When someone dies without a Will, New Jersey law establishes who has the right to serve as administrator (the equivalent of an executor under the Will) and who is entitled to receive probate assets (the assets that would have passed by way of the Will as lawful heirs). There are pros and cons to this approach.
The first question is whether under New Jersey’s intestacy laws the beneficiaries will be the same and whether the distribution of Estate assets will be greater or less than to certain beneficiaries provided for in the Last Will. If the answer is the same then filing an application for interstate administration may avoid the legal expense of filing an application to probate a copy of the Will. There is, however, another potential cost – the requirement to post a bond.
A bond is issued by a surety company and protects against the possibility that the executor or administrator does not distribute the Estate assets to the person(s) who are entitled to them. The cost of the bond depends on the size of the estate and can be several thousand dollars or more. Most Wills waive the requirement of a bond because of costs to the estate and trusted family members are usually designated as executor. Most Surrogates, however, require an administrator to post a bond in every instance except when the administrator is the surviving spouse.
So from a cost standpoint, the question is which is more costly – the legal expenses of going to Court or the cost of posting a bond, assuming a bond will be required.
Checklist of Duties of the Executor or Administrator
Additional Duties Required of the Executor or Administrator
There are many tasks and responsibilities facing a newly appointed executor or estate administrator. That’s why I’ve created this brief checklist for you. Not everything is listed here but you can refer to the prior page “Checklist of Things to do When a Person Dies” for even more information you may need to fulfill your responsibilities (Click Here).
HERE IS YOUR LIST OF THINGS TO DO AS AN EXECUTOR/ADMINISTRATOR
- The Executor will need to obtain an Estate tax identification number from the IRS. The decedent’s social security number can no longer be used. Thereafter an Estate checking account(s) should be opened in the name of the estate using the tax ID number.
- The Executor should conduct an inventory of the real and personal property and the assets of the Estate. An inventory is a brief description and valuation of the assets of the Estate that will come into the hands of the personal representative. The Executor must obtain information about all outstanding bills, debts and legal obligations of the deceased. There is a statutory order of priority in which the debts of the Estate must be paid regardless of whether the Estate is solvent or insolvent. With an insolvent Estate the order in which debts are paid is highly relevant because an insolvent Estate can’t pay all its bills. When the Estate is insolvent the Executor should file an application with the Court to have the Estate declared insolvent and to approve a payment plan to some or all of the creditors. There is an order of priority regarding which Estate expenses must be paid first. The order of priority is as follows: funeral expenses, administration expenses, Office of the Public Guardian for the Elderly, super-priority debts with preference under federal and state law, Medicaid liens, expenses of a final illness, judgments and then all other debts. (NOTE: With proper advice, it is possible for the Executor or Administrator to request an Order to Limit Creditors that is issued by the County Surrogate to protect against undiscovered obligations.) As stated previously, there are many statutory liens and other potential liabilities that must be researched and satisfied otherwise the estate representative (Executor, Administrator, Personal Representative) can be held personally liable if unpaid. This is a significant legal risk that must be understood by the estate representative. That’s why an experienced probate attorney is so helpful during the process.
- Organize and pay all uncontested bills and resolve all issues regarding questionable bills, debts and/or legal obligations.
- Establish the value of Estate assets and real estate property as of the date of death. Both the Federal Government and the State of New Jersey requires that the valuation of assets be established as of the date of death or sometime immediately thereafter, known as an alternate valuation date.
- Pay all financial obligations of the estate including executor’s fees, accountant’s fees, counsel fees. (NOTE: An Executor/Administrator is entitled by law to a fee or commission their services.)
- Apply for a New Jersey Tax Waiver(s). A tax waiver is a document issued by the State of New Jersey which releases Estate assets from tax claims by the State. In order to acquire a tax waiver, all death and inheritance taxes due to the State must be paid. If no taxes are due, a form must be filed to demonstrate to the New Jersey Transfer Inheritance Tax Bureau that the estate is tax-exempt. Upon evidence that the estate is exempt from taxes or upon payment of any taxes due, the State will issue a tax waiver. You can then present the waiver to banks, brokerage firms, etc. The tax waiver must also be presented to the county clerk in the county where real estate is located. Once filed, the real estate is released from the state tax lien.
Tax Waivers are discussed extensively on this site:
To learn more about tax waivers, see the following page entitled, “Transferring Assets to Beneficiaries During Probate”. It’s easy to forget about filing tax waivers as part of your role as executor. I have devoted an entire page on this topic that I want you to read closely. - File the appropriate NJ estate, inheritance, and income tax returns. There are statutory time limits for these filings to avoid interest and penalties to the estate and beneficiaries. Generally, they are 9 months from the date of death for a Federal Estate Tax Return and 8 months for a NJ Inheritance Tax Return.
- When all obligations of the estate are satisfied, the executor should disburse the remaining estate assets to beneficiaries. Beforehand the executor should have each beneficiary execute a Refunding Bond and Release for the amount of the inheritance received. Failure to obtain this document subjects the executor to sole personal liability to any future claims filed by creditors against the Estate. Each Refunding Bond(s) and Release(s) should then be filed with the County Surrogate’s Office.
- Initiate the transfer of property out of the deceased’s name and into the beneficiary’s name. This is known as transferring “title” or simply “change of ownership”. If property of the decedent is located outside of New Jersey, additional proceedings are probably necessary (Often referred to as ancillary probate), which means probating the will of the decedent in a state outside of NJ in order to legally transfer ownership of the property to the legal beneficiaries. See our page on ancillary probate and our video on this subject which can be found on this site.
Powers of Fiduciaries in NJ to Exercise the Rights of Shareholders, Members of an LLC & Partners in a Partnership
The Executor is the temporary proxy (proxy means decision-maker, manager, operator) over the corporate affairs and business decisions of the business entities owned by the decedent at the time of death which now becomes Estate assets.
N.J.S.A. 3B:14-23(n) states that in the absence of contrary or limiting provisions in the judgment or order appointing an Executor or, in the will, deed, or other instrument, every fiduciary shall, in the exercise of good faith and reasonable discretion, have the power to vote in person or by proxy, discretionary or otherwise, shares of stock or other securities held by the estate or trust.
Accordingly, during the estate administration, an executor has the right to vote the stock and/or membership interest in the name of the deceased stockholder/LLC member at the time of his death.
When voting shares of stock, etc. the Executor, as a fiduciary is under a duty to vote in such a way as to promote the interests of the business and by extension the interest of the beneficiaries or equitable owners. Where a fiduciary holds enough shares to actually or substantially control the conduct of the corporation, he or she is under a duty to exercise that control for the benefit of the corporation, LLC, Partnership.
Under the law of NJ, that the legal title to all personal property owned by a decedent at the time of his death becomes vested in the personal representative(s) of the Estate, courts have usually held that the right to vote stock, etc. follows the legal, rather than the equitable, title. Equitable owners, such as heirs, legatees, or creditors may receive the stock, or its value, when the estate’s administration is concluded but in the absence of some authority to the contrary, equitable owners cannot exercise any control over the voting of corporate shares so long as the executor or administrator has not been discharged, or there has been no distribution of the corporate stock, certificates or legal title(s).
In practically all instances where a decedent’s personal representative is authorized to vote the shares in the name of the deceased, they have been permitted to do so without the formality of having the stock transferred into their names in their fiduciary capacity. Where the executor’s or administrator’s authority to vote stock etc. is established, his or her right to vote the shares personally is unquestioned. It has been held that an executor or administrator cannot give a general proxy to a subagent of the fiduciary as such an appointment is contrary to law and serves to relieve the representative of his or her responsibility which must remain theirs alone.
Is it Too Late to Save on Taxes After Death: Tax Planning Options for the Executor?
Once appointed by the County Surrogate, the executor of an estate has many strategic decisions to make that may impact the tax liability of both the estate and the estate’s beneficiaries. Once made, many of those decisions become irrevocable or difficult to reverse. The following is a brief overview of some of the major decisions involved in filing a decedent’s final federal income tax return (Form 1040), the estate’s federal income tax return (Form 1041), and the federal estate tax return (Form 706). I will also address New Jersey Estate and Inheritance tax returns on this page.
Filing Income and Estate Tax Return(s)
Filing the Final Estate Tax Return
Internal Revenue Code Section 6012(b)(1) charges the executor (or other person entrusted with the decedent’s property) with the responsibility for filing the final income tax return for the decedent. Because most individual taxpayers file on a calendar-year basis, the final tax year will usually cover the period from January 1 to the date of death. For a calendar-year taxpayer, the return is due on April 15th of the following year. An automatic six-month extension may be obtained by filing Form 4868 and paying any estimated tax due with the extension.
If the decedent was married at the time of his death, the executor can generally file a joint return with the decedent’s surviving spouse, provided the spouse has not remarried before the end of the calendar year. If no executor or estate representative has been appointed, the surviving spouse may file the joint return on his or her own.
Generally, married couples will obtain a better result by filing jointly rather than separately. In addition to the applicable tax brackets, there may be other reasons for filing jointly. For example, the decedent may have capital gain losses that cannot be carried over to the estate income-tax return. The executor may want to file jointly if doing so would allow the losses to be used against capital gains realized by the surviving spouse. On the other hand, by filing jointly, the executor becomes potentially liable with the surviving spouse for all taxes and penalties for the final tax year. Each case will present a different set of facts for this analysis. It also raises some ethical and fiduciary conflicts if the executor declines to join in on the tax return with the surviving spouse. There are several important decisions an executor may need to make in connection with the estate-tax return.
Estate Income Tax Return
Because the decedent’s final tax year ends on the date of death, the estate’s first tax year begins the following day and may be for a period of less than one year.
The executor is required to file an income tax return for the estate for each tax year in which the estate has gross income for $600 or more or if any beneficiary is a nonresident alien.
Initially, the choice of which year to select to file is a consideration. The taxable year is chosen on the first return. Unlike trusts, which must use a calendar year as a taxable year, estates may choose either a calendar or fiscal year. A fiscal year may be for a 12-month period that ends on the last day of any month other than December.
In many cases, the executor will want to choose a fiscal year that ends after the close of a beneficiary’s taxable year. The reason for this is that a beneficiary is deemed to receive his or her share of the estate’s income on the last day of the estate’s fiscal year, even if the distribution was made earlier. Let’s see how this works.
Illustration. Decedent dies on May 15 of Year 1. The tax year of the estate’s sole beneficiary is the calendar year. By choosing a fiscal year that ends on January 31, the executor assures that any income distributed during Year 1 will not be included in the beneficiary’s income until Year 2. Thus, you can postpone the effective date when the tax is owed.
If the decedent had a revocable living trust that became irrevocable at death, an election may be made to treat the trust as part of the decedent’s estate. If the estate has adopted a fiscal year, making the election would allow that year to be used for reporting the trust’s income.
Administration Expenses and Losses. A constant question that comes up concerns the decedent’s final debts and expenses. Generally, an executor can choose to either deduct estate administration expenses and losses on either the estate’s income tax return or the corresponding estate-tax return. If the estate tax is non-taxable, the executor will typically want to take all available deductions on the estate’s income tax return. However, if the value of the gross estate exceeds the applicable exclusion amount, different considerations come into play and the analysis becomes more involved. The executor will always want to get the most value dollar for dollar on the treatment of deductions.
Deducting Medical Expenses. Unpaid medical expenses may be deducted as a debt on the decedent’s estate tax return or deducted as a medical expense in the year incurred if paid within one year of the date of death. Generally, if the estate is nontaxable, taking the deduction on the final return will result in the greatest tax savings. However, where the estate is using both the applicable exclusion amount and the marital deduction to eliminate estate taxes, the executor’s decision regarding where to deduct the medical expenses may affect each beneficiary differently.
Portability Election. Under the Federal Tax Code, if the estate of a single or married decedent is less than the maximum exemption amount under federal law which triggers the filing of a federal estate tax return, the executor may want to preserve the unused exclusion amount for the surviving spouse. The tax code offers an election to the estate of any decedent who was a resident or citizen of the United States on the date of his or her death who is survived by a spouse. The executor must make this election on the estate tax return.
Executors who fail to file the federal estate tax return (because the applicable exclusion renders the estate exempt from filing) but would like to make the portability election anyway may still be able to do so. Hence, the executor of the estate may file Form 706 for the estate within nine (9) months of date of death, plus any applicable extensions.
Alternative Valuation Date. The option to use an alternate valuation date is quite valuable to understand. Generally, the assets of an estate are valued as of the decedent’s date of death. However, the executor may elect to have estate assets valued as of the date six months later or even sooner if the assets are sold, exchanged, or otherwise disposed of prior to six (6) months. To make the election, the executor must demonstrate that the election will decrease both the value of the gross estate and the amount of the estate and generation-skipping transfer taxes. Before making this election, as the executor, you should consider the effect the election will have on other available elections. In some cases, the beneficiaries may be better off financially by keeping the higher date-of-death value because it will reduce subsequent capital gains and/or increase depreciation deductions because of the higher bias utilized for income tax purposes.
Disclaimers. The use of disclaimers is an important tool when evaluating options in estate administration. While ultimately it is the beneficiary who must elect to make a “qualified disclaimer”, the executor will often be included in the decision and whether such election is best for the estate and the beneficiary. Timing is critical here because disclaimers must be made within nine months of the date of death. This election deadline is unrelated to the filing of the federal estate tax return. It is based on the date of death so any extension of time to file the estate-tax return will not extend the period for making the disclaimer.
Fredrick P. Niemann Esq.
Conclusion
Proper administration of an estate requires that the executor or administrator make many timely and strategic decisions – both tax-related and otherwise. Careful attention to detail and the execution of estate obligations are essential for successfully fulfilling one’s fiduciary duties to the estate and the estate’s beneficiaries.
In order to protect and ensure that all functions of the executor/administrator are performed properly, consider talking to and/or meeting with Fredrick P. Niemann, Esq. who is an estate administration and probate attorney in New Jersey. He can be reached toll-free at (855) 376-5291 or by email at fniemann@hnlawfirm.com.
Fredrick P. Niemann, Esq. has working relationships with many New Jersey County Surrogate offices.