There are many terms that attorneys and the law use to name or describe the individual that is in charge of managing a decedent’s estate. The most common term used is “executor;” however, you will also hear the terms “personal representative” or “administrator.” These terms are interchangeable and provide the same duties to the individual named or appointed to the position.
When drafting a will, an individual is asked to provide the name of an individual to serve as the “executor” of his/her estate. The executor can be related to the individual, but does not have to be related if the individual chooses. However if an individual passes away without a will, fails to name an individual as executor, of if the person named as executor refuses to serve, it is left up to the probate court/surrogate court to name the administrator. The court selects the administrator based on a predetermined priority list: 1) decedent’s spouse, 2) adult children, 3) parents of the decedent, 4) siblings of the decedent, 5) other family members.
Once the named executor accepts the role or the court appoints the administrator, there are specific duties that the executor must carry out. First, the administrator collects and protects the decedent’s estate. This means it is the administrator’s duty to locate all of the assets that comprise the decedent’s estate and ensure that the assets do not go missing. Collecting and identifying a decedent’s property is normally not difficult; but it can require the executor to conduct appropriate searches and provide an inventory to the probate court/surrogate court. Second, the administrator must satisfy the decedent’s creditors. The creditors can be anyone from credit card companies to personal debts to even a cell phone bill. Anything that the decedent owes to creditors needs to be paid back. This money does not come from the executor directly; the moneys to satisfy the creditors will come from the decedent’s estate. Lastly, the executor is to distribute the decedent’s estate according to the decedent’s will or under applicable law, if the decedent did not leave a will.
The executor or personal representative of the estate does get compensated. Pursuant to N.J.S.A. 3B:18-13, the executor of an estate is entitled to 6% of the estate’s value. For example, if the decedent’s total estate is $100,000.00, the executor is entitled to $6,000.
At Campanile Law, LLC. when drafting a will, we ask the individual to provide three (3) names for the position of executor, along with contact information. We will contact the three (3) named persons and notify them that this individual has asked that he/she serve as the executor of the estate. We also provide a list of the duties and responsibilities of the executor so the person knows what they are saying “yes” to. If we do not receive a confirmation from anyone on the list, we will list the names in priority order of the client, naming the executor and subsequent executor if the first name says “no” when the will is probated. This process ensures that the individual has someone they trust administering his/her estate and takes the decision out of the probate court/surrogate court’s hands. The point of this is to have as minimal court involvement as possible and to make sure the decedent was able to have an individual he/she trusted.