Cover image for The executor's guide : how to administer an estate under a will
The executor's guide : how to administer an estate under a will
Kirby, Linda D., 1950-
Personal Author:
Publication Information:
Westport, Conn. : Praeger, [2004]

Physical Description:
xiv, 320 pages ; 25 cm
Format :


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KF778 .K57 2004 Adult Non-Fiction Central Closed Stacks

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You have been named the executor of a will by a friend or family member. Are you prepared to meet the challenge and do you know how to avoid personal liability? Thousands of individuals each year face the daunting and often painful task of settling the estate of a loved one, and even with professional guidance from attorneys, accountants, and financial advisors, they are often ill-equipped to deal with many of the tasks necessary to manage and settle an estate--and may put themselves at serious financial risk.

The Executor's Guide is the definitive instruction manual for anyone administering an estate under a will. Featuring step-by-step instructions, worksheets, checklists, and timetables, The Executor's Guide takes the reader through the entire process-from the time of death to the final closing of the estate. The Executor's Guide explains the full range of roles and responsibilities of the executor, including reading the will, hiring and supervising the attorney, dealing with court proceedings, notifying those who are entitled to property, finding and valuing assets, settling with creditors, filing taxes, and distributing the assets. Unique and highly practical elements include a comprehensive Summary of Assets (from Annuities to Videos), a glossary of essential terms, and a series of key questions to ask your attorney. Written in highly accessible language by an expert in the field, The Executor's Guide is at once authoritative and user-friendly--an essential resource for any family.

Author Notes

Linda D. Kirby is an attorney in Wichita, Kansas. Since 1988, she has focused her practice on probate administration, estate planning, premarital agreements, wills, trusts, and estate planning. Formerly Professor of Law at the University of Richmond, she has taught at Newman University, Wichita State University, and in continuing education programs for the Wichita Bar Association, Certified Financial Planners, and Certified Life Underwriters.

Table of Contents

Acknowledgmentsp. xi
Introductionp. xiii
1 Introduction to the Duties of the Executorp. 1
Legal Languagep. 1
The Responsibilities of the Executorp. 2
Fiduciary Dutyp. 2
Liability of Executor for Breach of Fiduciary Dutyp. 4
Co-Executorsp. 4
Out-of-State Executor or Out-of-Area Executorp. 5
Executor Can Decline to Servep. 6
Executor's Fees and Expensesp. 7
Negotiation of Executor's Feesp. 8
Income Tax on Executor's Feesp. 9
Power of Attorneyp. 10
Checklist: First Tasksp. 10
2 The Willp. 13
Types of Willsp. 13
Additions or Changes to the Willp. 16
Custody of the Original Willp. 17
Lost Willp. 18
Stale Willp. 18
Withholding the Willp. 18
Evaluation of the Willp. 19
Application of State Law and Interpretation of the Willp. 20
Powers Granted in the Willp. 21
Reading of the Will and the Family Interviewp. 22
Checklist: Next to Dop. 23
3 Opening Court Proceedingsp. 25
Why Probate Is Necessaryp. 25
Choice of Probate Proceedingsp. 28
Estate Attorneyp. 32
Attorney's Feesp. 34
Is a Bond Necessary?p. 35
Decedent's Namep. 35
Probate Timetablep. 35
Checklist: Opening Court Proceedingsp. 36
4 Identifying All Interested Personsp. 39
Interested Personsp. 39
Legal Proceedings to Determine Heirs and Beneficiariesp. 40
Minors, Disabled Persons, and Beneficiaries in Military Servicep. 40
Legal Notice Requiredp. 41
When Is Legal Notice Required?p. 41
Waivers of Noticep. 43
Publication of Noticep. 44
Checklist: Identify and Notifyp. 44
5 Guardians, Conservators, Custodians, and Trusteesp. 47
Who Needs a Guardian?p. 48
Appointment of a Guardian for a Minor Childp. 48
Appointment of a Guardian for a Disabled Adultp. 49
When Decedent Was Guardian of Another Personp. 50
Duties of the Guardianp. 50
Who Needs a Conservator?p. 51
Appointment of a Conservator for a Minor Child or Disabled Adultp. 51
Duties of a Conservatorp. 52
Distribution to an Adult Who Has Not Previously Been Judged Disabledp. 52
Custodian under the Uniform Transfers to Minors Actp. 53
Trusts for Minors and Disabled Adultsp. 53
Checklist: Guardians, Conservators, Custodians, and Trusteesp. 54
6 Inventory and Valuation of Assetsp. 57
Introduction to Identifying Assetsp. 57
Discovery of Assetsp. 57
Where to Look for Assetsp. 58
Confirmation of Asset Ownership, Asset Description, and Valuep. 62
Ownership Modesp. 62
Valuation and Appraisalp. 65
Organizing Information about Assetsp. 67
Checklist: Inventory and Valuationp. 67
7 Management of Assetsp. 69
Management Planp. 69
Need for Immediate Actionp. 70
Use and Occupancy of Estate Assetsp. 70
Secure Personal Itemsp. 70
The Obituaryp. 71
Insurance to Protect Estate Assetsp. 71
Safe Deposit Boxp. 72
Protection of Valuable Papersp. 73
Payment of Billsp. 78
Cash Requirements of the Estatep. 78
Estate Checking Accountp. 78
Joint Tenancy Accounts Used to Pay Expensesp. 79
Accountingp. 80
Early Distribution of Assetsp. 81
Death Certificatesp. 81
Letters Testamentaryp. 82
Decedent Was a Fiduciaryp. 83
Retitling Assetsp. 83
Investment of Estate Assetsp. 83
Investments Purchased by Decedentp. 84
Checklist: Management of Assetsp. 85
8 Sale of Assetsp. 87
Duty to Not Self-Dealp. 88
Accounting for Salep. 88
Minimum Sale Pricep. 88
How to Set the Pricep. 89
Sale of Personal Propertyp. 89
Distribution of Personal Property to Family Membersp. 90
Sale of Real Estatep. 91
Checklist: Sale of Assetsp. 93
9 Claims and Demands on Decedent's Estatep. 95
Notice to Creditorsp. 95
All Claims Must Be Exhibited by Creditorsp. 97
Approval and Payment of Claimsp. 97
Types of Claims and Demands on Estatep. 98
Insolvent Estatesp. 100
Schedule of Abatementp. 100
Accounting for Payments and Abatementp. 103
Warning about Specific Gifts in a Willp. 104
Checklist: Creditorsp. 106
10 Taxesp. 109
Income Tax for the Beneficiaries, Devisees, and Legateesp. 109
Basis Step-Upp. 110
Filing Tax Returns for the Decedent and the Estatep. 111
IRS Forms SS-4 and 56p. 112
Decedent's Income Tax Returnsp. 112
Estate's Income Tax Returnsp. 114
Federal Estate Tax Returnp. 115
Generation-Skipping Transfer Taxp. 116
State Inheritance, Succession, or Estate Tax Returnp. 117
Consent to Transferp. 117
Elections and Optionsp. 117
Elections Presented in the Federal Tax Codep. 118
Elections and Options Not Presented in the Federal Tax Codep. 119
Who Pays the Taxes?p. 120
Liability of Executor for Tax Decisionsp. 122
Checklist: Taxesp. 124
11 Special Considerationsp. 127
Disclaimersp. 127
Pre-Marital and Post-Marital Agreementsp. 128
Survival Clausesp. 129
Simultaneous Death Clausesp. 129
Settlement Agreementsp. 130
In Terrorem Clausesp. 130
Testamentary Trustsp. 131
Living Trustsp. 132
Checklist: Special Considerationsp. 133
12 Final Settlement, Distribution of Assets, and Discharge of the Executorp. 135
Determination of the Estate to Be Distributedp. 135
Claims and Demands on the Estatep. 138
Types of Claims and Demandsp. 138
Abatement of Gifts to Pay Debts, Taxes, and Expensesp. 141
Classes of Giftsp. 142
Limits to the Distribution of the Estatep. 143
Process for Determining Distributionp. 145
Petition and Order for Final Settlementp. 150
Transfer Assets to New Ownersp. 151
Instructions for Transfer of Specific Types of Assetsp. 151
Receipt and Refunding Agreementsp. 151
Distribution of Household and Personal Propertyp. 152
Distribution to Minors and Disabled Personsp. 152
Distribution to Trusteep. 153
Closing the Estate and Discharging the Executorp. 153
After Dischargep. 154
Reopening the Estatep. 154
Checklist: Final Settlement, Distribution of Assets, Closing of the Estate, and Discharge of the Executorp. 154
Appendix I. Probate Timetable: Court Proceedingsp. 157
Appendix II. Timetable Necessary for All Estatesp. 159
Appendix III. Proposed Method for Distribution of Personal and Household Itemsp. 161
Appendix IV. Worksheets and Formsp. 167
Appendix V. Summary of Assetsp. 181
Types of Assetsp. 181
A Survey of Specific Types of Assetsp. 183
Annuitiesp. 186
Antiquesp. 188
Artp. 192
Automobiles and Other Motor Vehiclesp. 195
Bonds (Corporate Bonds, Municipal Bonds, U.S. Government and Agency Bonds)p. 200
Cash and Uncashed Checksp. 206
Cemetery Lotsp. 207
Death Benefitsp. 211
Debts Owed to the Decedentp. 213
Deposit Accountsp. 216
Devises, Legacies, and Inheritances from the Estate of Anotherp. 218
Family Memorabilia, Photographs, and Videosp. 221
Gifts Made before Death (within Three Years of Date of Death)p. 226
Gift Tax Paid Three Years Prior to Date of Deathp. 227
Goods in Storagep. 229
Income-in-Respect of Decedentp. 232
Intangible Personal Propertyp. 234
Jewelryp. 238
Joint Interestsp. 242
Judgmentsp. 244
Lawsuitp. 246
Life Insurancep. 249
Mutual Fundsp. 253
Oil, Gas, and Other Mineral Interestsp. 257
Personal and Household Effects (See also Family Memorabilia)p. 261
Petsp. 266
Promissory Notep. 270
Real Propertyp. 273
Refundsp. 280
Retirement Plansp. 281
Stocksp. 284
Tangible Personal Propertyp. 289
Trustsp. 294
Appendix VI. Questions to Ask Your Attorneyp. 299
Chapter 1p. 299
Chapter 2p. 300
Chapter 3p. 301
Chapter 4p. 302
Chapter 5p. 302
Chapter 6p. 303
Chapter 7p. 303
Chapter 8p. 303
Chapter 9p. 303
Chapter 10p. 304
Chapter 11p. 305
Chapter 12p. 305
Glossaryp. 307
Indexp. 315