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The Top 4 Errors That Can Trip Up Estate Executors And Trustees



Mitchell Miller

Before we discuss these errors, though, let’s just review what an “executor” is:

An executor is the person appointed in a will to administer an estate, usually under some degree of court supervision.

A trustee is the person or persons designated in a trust to administer the trust, normally after the person or persons who set up the trust (called the “Grantor,” “Settlor,” or “Trustor”) have died or become incapacitated. This is usually done without any type of court supervision.

Notwithstanding the difference, an executor or a trustee will frequently be dealing with the same issues.

In either case your responsibilities would include such tasks as making sure you are aware of and have taken control of the estate or trust assets, including bank and brokerage accounts, real estate, businesses, the contents of storage lockers, safe deposit boxes, and assets hidden under the mattress (this process is called “marshalling” the assets).

You also must, in due course, pay the bills and claims against the trust or estate, determine which assets should be sold, which kept, which donated to charity and which thrown away.

Finally, you will be responsible for distributing assets to heirs in accordance with the will or trust – if the trust so provides, this might include administering a trust for a long period of time.

While being named an executor or trustee might sound as if it is an honor, you need to be prepared for what can become a vast time drain as well as an emotional drain. (Imagine fielding calls from feuding adult siblings over who gets Mom’s wedding dress or Dad’s U.S. Army medals.)

The Wall Street Journal article mentions these four common executor mistakes:

  • Paying bills too quickly
  • Playing the market
  • Mishandling real estate
  • Losing tangible assets

Let’s discuss these in more detail:

  • Many executors immediately start paying the bills that are accumulating on the decedent’s desk, such as credit card or merchandise bills. Very wrong!

After paying funeral expenses, taxes (of course!) have the first priority. So you must check with the decedent’s accountant to find out what his or her tax situation is.

You the executor are responsible for filing the decedent’s final income tax return, an estate tax return if one is due, and continuing tax returns for the estate or trust. If you pay other creditors or make distributions before paying the IRS and the state taxing authority, you will be personally liable for the taxes.

Any court-ordered payments, such as spousal or child support, then the expenses of administering the estate or trust, come next.

You then pay the creditors of the decedent — you are responsible for determining which are valid — and then, and only then, can you make distributions to the beneficiaries.

  • As a trustee or executor, you are held to the standard of a “prudent person managing his or her own affairs” in handling the estate or trust assets.

So, no selling high-grade securities to invest in junk bonds, no selling all the assets to invest in a start-up you read about in Wired, and, above all, NO mingling of your assets with those of the estate or trust.

Again, you will be personally liable for any loss of value due to your failure to act prudently and with the strictest honesty.

  • Handling real estate can be another potential minefield.

Does the will or trust provide for a specific disposition of the real estate? If so, you must follow it. If there is no specific direction, and one child wants to keep the house and one wants to sell it, you must determine a fair and equitable means to do that while ensuring everyone gets his or her designated share.

If that can’t be done, it is your responsibility to sell the property and add the proceeds to the trust or estate. Of course, you must do your best to get the highest possible price for the real estate (and any other assets you sell).

  • As noted earlier, one of the executor or trustee’s responsibilities is to marshal the assets. This means not only finding them, but securing them as well.

This includes jewelry, silver, china, artworks, and other tangible property. Unfortunately, there have been too many instances where beneficiaries simply went to the home of their parents and took items. This is theft, and it is your responsibility to prevent it.

You must inventory all the personal property (a smartphone camera makes it easy to do this) and secure it. Yes, that means changing the locks and the alarm codes if you think it is necessary. You may even have to file an action in court to get back an item that has been improperly taken.

In the case of an estate, the inventory may have to be conducted or affirmed by a court-appointed appraiser, and the inventory filed with the court.

If there are instructions in the will or trust as to the disposition of personal property, you must follow them. If not, again, you must devise a fair and equitable method of distribution.

  • And then there are the unexpected liability issues:

I’m currently working with a client whose uncle died intestate and, as closest next of kin, she is administering the estate. In effect, she is dealing with this as if she had been named the executor. Among other unexpected issues: her uncle had a gun collection (not all in one place) and a business with, among other things, hazardous chemicals and equipment. Imagine if you as an executor had to deal with these kinds of assets.

  • Don’t try to do all this on your own.

As a prudent person, you retain an attorney, accountant, financial planner, and other advisors to assist you in managing your affairs. As an executor or trustee, you must do the same. Retaining professional advisors is a necessary and legitimate expense of the estate.

All this responsibility may sound scary — it is, but it can easily be mastered and it has been, millions of times, by ordinary people acting honestly, faithfully, and prudently.

Click here to read my article “The Important Differences Between Executors and Trustees in an Estate Plan.”

One final note: For your own estate, you want to avoid probate by having a will and trust (click here to watch my brief video “Why a Will Is Not Enough to Avoid Probate”) and you want to make things easier for any named executors or trustees by providing clear instructions on how you want your assets handled after your death.

The information in this article is NOT legal advice, only considerations for you to discuss with your own estate planning attorney. 

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