Executors are individuals or institutions named in a will to oversee the transferring of property owned by a deceased person to his beneficiaries after death. The process is referred to as probate and Indiana law places certain restrictions on who may serve as an executor as well as the duties and standards for the executor's performance. Understanding the guidelines for executors in Indiana will help you make an informed decision on who to appoint for carrying out these important probate responsibilities.
An executor refers to the person appointed by a will maker in the text of a valid will. In Indiana, if a person dies without a will or no executor is named in the will, the court will appoint an administrator. The administrator is functionally equivalent to an executor, and both are collectively referred to as personal representatives. State law places certain restrictions on who may serve as executor, and failure to meet these requirements will disqualify any person you appoint. Specifically, no executor may be under the age of 18, mentally incapacitated or a convicted felon. An executor can be a corporation, such as a bank or financial institution, provided the business is authorized by the state to serve in this capacity.
Overview of Duties
When you pass away, the first duty required of your executor is to open probate. This is done by submitting your will to the probate court in the county in which you lived. Once probate has been opened, it is the job of the executor to contact potential beneficiaries listed in your will and publish notice to creditors in the newspaper. The notice provides a three-month window for creditors to present their claims, or be forever barred. The executor will also need to make an inventory of all of your property, and determine what assets are subject to probate. Probate property is typically all property in your name that does not pass automatically at death, such as life insurance proceeds, payable on death accounts and property held in trust.
Once all of your probate property has been valued, outstanding debts satisfied and taxes paid, your executor may then distribute any remaining property according to your express directions in the will. Because of the complicated nature of probate, it is not uncommon for executors to retain the services of qualified professionals to provide specialized assistance throughout the process. For example, appraisals of assets might be necessary when the property is difficult to value. In addition, the services of an attorney might be necessary to pursue litigation on behalf of the estate, such as wrongful death actions. After property has been distributed to beneficiaries, the executor will provide a full accounting to the court and a judge typically closes the estate at this time.
Executors exercise a great deal of control over your property. For that reason, these individuals or institutions are held to a high standard of care in Indiana. This standard is known as the fiduciary duty, which requires your executor to always act with good faith, honesty and loyalty. The duty also requires the executor to put the interests of your beneficiaries above his own. In cases in which the court believes an executor has failed to act in accordance with this duty, the judge can order removal and replacement of the executor. For this reason, many will makers find it helpful to discuss the importance of these duties with potential executors in advance and obtain permission from that individual before appointing him or her in a will.
Wayne Thomas earned his J.D. from Penn State University and has been practicing law since 2008. He has experience writing about environmental topics, music and health, as well as legal issues. Since 2011, Thomas has also served as a contributing editor for the "Vermont Environmental Monitor."