An executor, also referred to as the personal representative, is the person or entity who is appointed by the probate court (Circuit Court) to manage the estate of a decedent during the estate administration process. During administration, the decedent’s affairs are settled. This involves making sure debt that the decedent left unpaid is resolved. It also means that the decedent’s assets must be transferred to others. While the probate court has jurisdiction over estate matters, the executor does the leg work necessary to close the estate.
Typically, the executor or personal representative is nominated by the decedent in their will. However, if that person is not able or serve, then those entitled to serve also includes anyone who has an interest in the estate or that person’s nominee within the discretion of the court. In addition, the court has discretion to appoint the person it sees fit.
The Circuit Court judge must approve the appointment of the executor, regardless of whether the person was nominated by the decedent in their will. The court will review the petition and determine if the petitioner is fit to serve as executor. If so, the court will sign an order approving the petition and issuing the newly appointed executor “letters.”
Executor Duties and Responsibilities
Depending on the size and complexity of the estate, the executor’s job can be relatively simple or it can be quite complex. By law, they have the authority to take control the estate and essentially stand in the shoes of the decedent in order to take care of the decedent’s outstanding business. All that needs to be done to pay estate debt and distribute assets must be completed by the personal representative or at their direction.
Take control of assets. Once the executor is appointed and has received letters, the decedent’s property interest becomes the executor’s. The executor must identify estate assets and take control of them. As a fiduciary, the executor has the responsibility of not only controlling and managing estate property, but as a fiduciary, they must secure it, keep it in good repair, and not do anything that causes the value of the estate to diminish.
Inventory and appraise the assets. The executor is required to inventory the estate and determine the value of each asset as of the date of the decedent’s death. It may be necessary for the executor to hire professional appraisers to determine the value of certain estate assets.
Pay estate debts. The next major task of the executor is to pay estate debts. Creditors must file claims against the estate within the published time frame. Failure to do so many result in the claim being barred, even if it is valid.
Pay expenses and taxes. In addition to paying claims, the executor is also required to pay expenses of administration and is empowered to do so from estate assets. Permissible expenses include what is necessary to pay for the care, management, and settlement of the estate. In addition, the executor must pay any taxes that are due.
Final accounting. After debt, expenses, and taxes are paid, the executor must file their final accounting with the probate court, containing details of the actions that the executor completed to settle the estate. Along with the final account, the executor must submit a petition for the court to enter final judgment and authorize asset distribution.
Distribute estate assets. In the final judgment, the court will approve asset distribution, indicating how the executor is to distribute estate property. Asset distribution is based on either the terms of the decedent’s will or the West Virginia’s law of intestate succession if there is no will. W. Va. Code § 44-1-3 et seq.
For all of the work that they do, executors are compensated. Under W. Va. Code § 44-4-12A., the executor is entitled to compensation based on the value of the estate that is subject to administration as follows:
- 5.0% for the first $100,000
- 4.0% for above $100,000 and not exceeding $400,000
- 3.0% for above $400,000 and not exceeding $800,000
- 2.0% for above $800,000