Updated 3 17 2016
Law Office of D. Victor Pellegrino
2627 Genesee Street, Utica, New York, 13501
Phone: (315) 733-0417 Fax: (315) 792-8075
DUTIES AND RESPONSIBILITIES OF AN EXECUTOR
If you are about to appoint someone as your Executor under your will or if you agree to accept an appointment as an Executor under someone else's will, you should know what the duties and responsibilities of an Executor are.
Being an Executor involves many duties, responsibilities and liabilities.
I handle the probate and administration of estates and advise Executors as to their duties, responsibilities and liabilities on a regular basis.
I hope you find this 97 Point Checklist informative in giving you an idea of what is involved in being an Executor, whether you are deciding who will be your Executor or if you will be someone else's.
SOURCE: This checklist has been adapted by me from one the United States Trust Company of New York developed for use in its Estate Administration Department. It covers the basic duties performed by an Executor. It does not, of course, treat problems often presented in complex estates handled by my office, such as valuation and disposition of unusual assets or management of businesses, nor does it attempt to treat other important functions that I regularly undertake and which other Executors may be called upon to perform. The arrangement of the material in this list reflects the usual chronology in estate administration.
I. Actions to Be Taken Immediately
1. Review all files:
A. That the decedent had with:
a. his lawyer,
b. his accountant,
c. financial planner
B. That decedent had in his possession for:
a. personal and family history,
b. fiduciary and beneficiary relationships.
2. Consider flowers, contributions, or letters of sympathy.
3. If decedent has no close or surviving family, consider anatomical bequests the decedent may have made and funeral arrangements.
4. Is there casualty insurance? It may require action before the interment.
5. Make security arrangements, if appropriate, if decedent's residence will be unoccupied (permanently or during the funeral).
6. Complete obituary.
7. Inform all advisors of death by telephone: e.g.,Trustees; Investment; Tax; Personal Banking; Real Estate; Insurance; Lawyer, Accountant, Financial Planner.
8. Make arrangements to have all mail rerouted to you, e.g., bank account statements, financial statements, loan notices, insurance premiums, tax bills, utility bills, etc.
9. Determine what lawyer will advise you and handle the probate of the will and the administration of the estate.
II. Initial Contact with Attorney.
10. Agree on delegation of duties. Discuss fees and choice of appraiser(s).
11. Discuss Probate of the Will. Probate papers should be prepared by the attorney and signed by you. Petition for appointment as trustee of testamentary trusts at the same time.
A. Advisability of Preliminary Letters Testamentary which are appropriate if undue delay in obtaining permanent letters is expected and the estate has an immediate need for cash, or if estate assets are subject to great fluctuations in value.
B. Necessity for Ancillary Administration if decedent owned assets (generally other than intangibles or joint property with right of survivorship) in another state.
12. Request that attorney petition Surrogates Court for safety deposit box opening.
A. Closely held business interests, or unusual assets.
B. Pending litigation concerning the decedent.
14. Make sure attorney has original will.
III. Actions To Be Taken Within First Month of Adminitration
15. Order valuations for Federal estate tax purposes.
16. Prepare Will Analysis summarizing Will provisions in concise form.
17. Obtain an estate Employer Identification Number from the Internal Revenue Office by filing an SS4 form. Also file a Notice of Fiduciary Form with the Internal Revenue Service and New York State to get all correspondence from the IRS and New York State Department of Taxation.
18. Open an estate checking account after the will has been probated.
19. After Probate, transfer securities from decedent’s account into an estate account.
20. Keep track of any changes in account holdings, cash receipts and disbursements subsequent to date of death in estate account.
21. Confirm that all cash and security transfers have been completed. Close all of decedent’s personal accounts.
22. Obtain financial and bank statements of all transactions for all accounts covering the three-year period before the decedent's death for review re: estate, gift tax returns and income tax returns. Consider sending copies of these statements to attorney/accountant.
23. Maintain a folder for a record of all disbursements for estate expenses, e.g., travel, long distance telephone charges, etc., to be charged to estate as reimbursement to Executor.
IV. First Meeting with the Family.
24. Review family background and prepare agenda. Obtain input from attorney, accountant, financial planner and co-executor if there is one.
A. Bank records, cancelled checks and checkbooks for three calendar years.
B. Income, gift tax returns for three calendar years.
C. Insurance policies and appraisals.
D. Salary records for employees, if any.
E. Medicare information.
F. Closely held business records, if any.
G. Credit cards.
H. Securities, traveler's checks, cash, etc.
26. Determine if jewelry and other fine arts and transportable valuables should be placed in a safe or otherwise secured.
27. Discuss with family, attorney and accountant:
A. Which of decedent's employees (if any) are to be retained. Discuss
termination and severance pay. (Consider estate tax ramifications.)
B. The length of time during which the estate can pay bills for the management and preservation of real and personal property pending distribution to beneficiaries.
C. Arrange for the payment of salaries during this period.
D. Discuss with accountant the necessity for setting up withholding, filing tax returns, etc.
28. Ascertain whether decedent held any:
A. Outside fiduciary or beneficiary relationships.
B. Powers of Attorney.
C. Property taxed in other estates within 10 years of death.
D. Powers of Appointment.
E. Consider if the decedent could be a deemed transferor for generation-skipping purposes.
29. Request social security numbers and income tax brackets of beneficiaries.
30. Give this information to the accountant for use in preparation of estate income tax plan.
31. Ascertain if any beneficiary has a pressing need for income or strong wish to defer taxable income.
32. Are there unusual circumstances warranting early estate distributions and/or preparation of estate income tax plan?
33. Arrange with spouse or relatives of decedent to have decedent's mail sorted and forwarded to you. If decedent lived alone, request that the Post Office forward decedent's mail directly to you. It is necessary to enclose a probate certificate with the formal request to the Post Office.
V. Administration of Real Property and Tangible Assets
34. Review all insurance policies. Promptly ascertain need for new or additional coverage.
35. Prepare Real Estate Checklist. Provide supplemental back-ground information and instructions as necessary to the Attorney. Include a determination if there are any gas tanks or other environmental problems. Discuss renunciation of real estate with estate attorney and beneficiaries.
36. Arrange for appraisals of both personal and real property.
A. Discuss the selection of an appraiser with the attorney beforehand.
B. Try to coordinate the real estate appraisal date with personal property appraisal to avoid inconveniencing surviving spouse or who ever is living in the house and to save expenses.
C. If valuables have been transferred to a safe, consider arranging an additional appraisal where the safe is.
D. Also consider appraisal at safe deposit box.
37. Verify that appraisals do not omit any property to be valued in the estate. Verify that all items on appraisal are accounted for when sold or distributed.
38. If necessary, secure car and house keys and change house locks: Consider arrangements to have guard on premises pending adequate insurance and security protection.
VI. Additional Actions to Be Taken
39. Prepare cash requirements. Discuss legal fees with attorneys beforehand
40. Compile necessary data to begin estate inventory.
41. After Probate, An Information Notice (advising decedent’s account and financial advisors) should be circulated. It should contain the following information: the date the Will was admitted to probate, date of Letters Testamentary (if issued) (distinguish preliminary/permanent Letters); court file number if any; the County court where the will was probated and if warranted, comment on the necessity of ancillary administration and details.
42. Arrange safe deposit box opening: Prepare a letter of introduction for yourself at the box opening. Bring Death and Probate Certificates, box key, and securities case (if necessary). Determine if family members wish to attend opening. If a co-executor will not be attending the box opening, obtain a waiver of his/her presence. Consider necessity for a guard.
43. Determine legal requirements for release of assets from outside custodians, and re-registration of decedent's securities into estate account. Discuss with estate attorneys the need for tax waivers, releases of lien, and foreign tax returns, etc. Determine whether securities are incorporated outside of decedent's state of domicile. Non-resident tax waivers may be required. If warranted, consider sales (before re-registration into estate’s account) with legal requirements attached, or for delayed settlement. Discuss with investment officer. Also, consider Securities Law compliance and discuss the same with estate attorney, financial advisor and accountant to determine compliance requirements, if any.
44. If the estate involves charitable remaindermen, file a New York State Charitable Report.
45. Compose comprehensive draft of estate road map letter which should be reviewed by estate attorney for their comments before sending to beneficiaries.
46. Consider new business and business retention possibilities. Prepare report covering results of New Business inquiries.
VI. Issues for Consideration with Family, Attorney, Accountant.
47. Review powers of appointment to determine taxability. Obtain required information on powers of appointment at initial meeting. Have attorney confirm all conclusions in writing.
48. Ascertain if decedent had foreign property interests. Review the laws of the foreign jurisdiction to determine procedures for administration, tax computations and tax liability. Any tax liability will be part of cash requirements. Determine necessity for ancillary administration.
49. Ascertain whether decedent ever lived in a community property state where property at death may be considered community property.
50. Review any questionable claims or charitable pledges before payment.
51. Consider qualified disclaimers within nine months of death (Code Sec. 2518). Make necessary calculations to determine any tax savings. Review local law re disclaimers to ascertain that Federal requirements are satisfied. Consider surviving spouse elective share provisions in view of Will provisions.
52. Consider the advisability of a co-executor waiving commissions. If co-executor is surviving spouse, consider the cost of taking commissions in respect to impact on marital deduction and size of residuary share. Compare estate tax rate and income tax rate of beneficiary.
53. Review possibility of generation-skipping transfers (I.R.C. CH. 13, Sections 2601-2622).
VII. Post-Mortem Income Tax Planning.
54. As soon as possible but no later than three months after date of death, check with lawyer and accountant to ensure that they have all necessary information for tax plan.
55. Post-mortem income tax plan should be prepared as soon as possible but no later than six months after the dale of death. Consider the implications of deciding whether to charge administration expenses on the Federal estate tax return or the fiduciary income tax return.
56. The Decedent 's Final Income Tax Return:
A. Consider extension of filing, filing jointly, amending returns, or other elections, e.g., medical expenses, Series E Bonds, etc.
B. Consider time limitations on outstanding income tax return claims and pending deficiency or refund suits.
C. Arrange filing of final income tax return and payment of tax.
57. Consider asking for prompt assessment under IRC 6501.
58. Annually review income tax plan in light of possible changed circumstances with estate attorney and accountant. Send annual tax plan with letter of explanation to beneficiaries.
VIII. Gift Taxes.
59. Review decedent's gift tax returns for all gifts made in the three years preceding death. Obtain copies of all returns for 706 preparation.
60. Effect of Gift Taxes on Federal Estate Tax Return:
A. All gift taxes paid after December 31, 1976 and within three years of the decedent's death must be included on Schedule G of the 706 and should be taken into account in making cash requirements calculations.
B. All gift taxes paid after December 31, 1976 are credits to estate tax on the 706 and should be shown on the cash requirements.
61. Consider settling outstanding gift tax liability prior to the filing of 706. Review last three years' cancelled checks to verify decedent's reporting of taxable gifts. Consider asking for prompt assessment under IRC 6501.
62. Consider whether a gift tax return should he filed for gifts made in year of death.
IX. Finalize Estate Inventory.
63. Review income tax returns for potential assets.
64. Complete forms (for veterans, survivors benefits, burial allowance, lump sun) death benefits, etc., as the case may be) for claiming benefits due estate or family members.
65. Collect bank and brokerage accounts as soon as possible. Banks may have different legal requirements for remitting balances to executors. Generally passbooks, tax waivers, probate certificate and death certificate are required.
66. Cancel credit cards. Inquire whether decedent's staff is in possession of credit cards. Obtain and destroy all credit cards. Before settling accounts, inquire whether there is credit card life insurance in effect. Consider surviving spouse's wishes to have new credit cards issued in surviving spouse’s name.
67. Cancel club memberships and collect any unearned portion of dues. Consider wishes of surviving spouse and/or other family members to continue or transfer club memberships.
68. Cancel magazine subscriptions and obtain refund on unexpired portion of subscription.
69. Redeem Traveler's checks. Send memo with checks, death certificate, probate certificate to tellers for redemption. Follow-up in two weeks.
70. Review preliminary date of death inventory. Consider making additions as decedent's outside assets are collected or appraised, and updating inventory as assets are sold or distributed.
71. Obtain alternate values. Have securities or assets, not sold or distributed, revalued to determine if alternate valuation date should be used. For estate tax purposes.
72. Make sure accountant transfers accrued income per estate inventory, net of expenses, to principal of estate account.
X. Payment of Legacies
73. Determine due date for payment of legacies under applicable State law and review with attorney. Consider early payment of legacies with residuary beneficiary, attorney and accountant.
74. Request beneficiary's social security number and delivery instructions for payment of legacies one month before payment is to be made.
75. Arrange for estate attorney to send Receipt and Release Agreements to beneficiaries for signing one month before payments are to be made. Generally obtain signed Receipt, Release and Refunding Agreements before making legacy payments or distributing assets
76. Pay legacies. Consider paying cash legacies in kind.
77. Distribute specific bequests of tangible personal property. If appropriate supervise any selection process called for.
XI. Estate and Inheritance Taxes.
78. Prepare letter to same individuals who received roadmap letter. Explain filing procedure, payment of tax. Inform them that monthly statements will now be sent quarterly.
79. Consider obtaining Federal Release of Lien for personal property. Also consider requesting discharge, under IRC 2204, for estate tax, IRC 6905 for gift tax and income tax.
80. Change statement frequency to quarterly.
81. Consider extension of time for payment of tax pursuant to I.R.C. Sec. 6161 (on reasonable cause), Sec. 6163 (on value of reversionary or remainder interest in property), or Sec. 6166 (on closely held business and/or farm property). Note: Extension of time for payment of tax is not an extension for filing return.
82. Consider extension of time for filing 706 for as long as six months. (I.R.C. Sec. 6081) Note: tax must be paid on time. General policy is to avoid asking for an extension to file unless compelling circumstances require it.
83. Send completed inventory to attorney/accountant and beneficiaries no later than one month subsequent to alternate valuation date so that federal estate tax return can be prepared and reviewed no later than three weeks before due date of tax. Consider asking attorneys or accountant to send copies of draft of 706 to you for your review.
84. State Estate/Inheritance Tax
A. Determine the due date.
B. Determine applicable asset valuation date.
C. Determine provisions for late or extended payment.
D. Consider timetable for payment of New York estate tax. Within six months of date of death, a payment should be considered for at least 90% of the New York estate tax eventually determined to be due. Request that attorney/accountant submit the state inheritance tax return to you for review no later than three weeks before due date
85. Redeem United States of America Treasury Bonds with appropriate form(s) for assets held in trust, jointly owned, etc. Send to attorney with accrued interest calculations for review at least four weeks prior to due date of tax.
86. When you receive official confirmation of income accrued on Flower Bonds used to pay tax (if there is no contrary provision in the Will or local law) reimburse estate income from principal in this amount.
87. Consider with attorney the type of estate settlement desired: Judicial Accounting; Receipt, Release and Refunding Agreement with formal schedules.
88. Advise beneficiaries of accounting commencement.
89. Consider the desirability of an intermediate accounting if final account is expected to be complex.
90. Review post-mortem income tax plan. Determine the desirability of a prompt or a deferred closing of the estate.
91. Verify that attorneys have filed the New York Surrogate's Court Report within required period after probate.
92. Review Final Accounting.
93. Advise beneficiaries of final outcome of estate tax audit.
94. Will sufficient income be collected in final year to absorb administration expenses taken on fiduciary income tax return, or will the deduction pass through to beneficiaries who can use it?
95. Ascertain if a reserve of income of continuing trusts should be maintained to cover income tax .
96. Send letter to beneficiaries of continuing trusts advising them of the end of your involvement and introducing (if necessary) the Trustees of the Trust.
97. Close the estate.
While this checklist is not all inclusive, I hope you found this information useful. If we can help you probate and administer an estate, please contact us. We hope to hear from you soon.
Warmest personal regards
D. Victor Pellegrino