If you're the executor

November 5, 2004

Settling an estate is usually a nettlesome task. We'll help you minimize the headaches.

Porter was only half-kidding, given the headaches he went through to settle his dad's estate. As executor of his father's will, Porter was "hip deep" in his father's affairs and "sinking deeper by the day."

An executor-or personal representative, as they're called in some states-settles the estate according to the terms of the will. While the job can be wrapped up in a relatively short amount of time, the duties can still seem overwhelming. Here's a rundown of the many tasks you'll face in fulfilling the deceased's wishes, and what to consider when choosing an executor for your own estate.

Even though executors are paid for serving-states vary on how compensation is figured, but more than $100 an hour isn't unusual-you may decide you'd rather not handle the job. Perhaps you're not related to the beneficiaries, you don't get along with one of them, or you expect some messy squabbles over property. Then declining to serve makes sense. (If the will doesn't designate an alternate executor-or a bank or trust company to serve as executor-the court will appoint someone.) Most people, though, agree to serve out of a sense of duty and obligation.

Where do you start? First, read the will a couple of times, so that you're clear about who the beneficiaries are and which assets have been left to each of them. The will may also stipulate which assets you should use to pay taxes and expenses, which you can distribute, and which you can place into either a new or existing trust. If there's a co-fiduciary-someone who will manage a trust, for instance-the will should spell this out, too.

Next, you'll have to register as the estate's executor by filing the original will and the death certificate with your state's vital records department. (A few states-including Delaware, Maryland, and Pennsylvania-have county "Register of Wills" offices; New Jersey has county Surrogates offices.) This begins the formal legal process of "probate."

At this point it's a good idea to hire an estate-planning attorney to guide you through the probate proceedings. "Most estates are complicated enough to justify professional services," says Phillip E. Harter, a judge for the Calhoun County Probate Court in Battle Creek, MI. "In my experience, in most cases in which someone has tried to probate an estate without legal assistance, it has been a disaster and the decision was regretted."

A lawyer can also recommend important strategies that you might otherwise overlook. "I recently met with a physician whose mother had died," says Martin M. Shenkman, an attorney in Teaneck, NJ, and the author of several books on estate planning, including The Complete Probate Guide (John Wiley & Sons, 1999). "The doctor was being sued for malpractice, and I advised him to disclaim his share of the inheritance. Why should he leave that money at risk of being claimed in a judgment against him? The money will pass to his kids instead."

Moreover, hiring an estate-planning attorney can help reduce the prospects of negligence, since a beneficiary can sue you for any dereliction in your duties as executor.