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Planning Your Estate
Part 8 -- What is an Executor or Administrator?

When a property owner in Mississippi dies, the law provides a legal procedure for settling estates. This process, termed "probate," takes place under jurisdiction of the chancery court in the county where the deceased lived.

Under Mississippi law, you are free to make a will or not, as you choose. If you make a will, you may name the person to carry out your plan to settle your estate. In Mississippi, the individual who performs this function is called an executor (man) or executrix (woman). For the remainder of this publication, "executor" is used to refer to a man or a woman.

If you have probate property but fail to name an executor in your will, the person named in your will as executor is unable or unwilling to serve, or if you die without a will, the court will appoint someone to settle your estate. This person is called an administrator (man) or administratrix (woman). For the remainder of this publication, "administrator" is used to refer to a man or a woman.

An executor or administrator is regarded as an officer of the court, subject to the direction, supervision, and control of the court until the estate is closed and he is finally discharged.

This publication provides a general outline of the duties and responsibilities of executors and administrators during the settlement of an estate. It is not intended to cover their responsibilities in detail. Some responsibilities are common to every estate. Others depend on the complexity of the estate.

Who Should Be Your Executor?

Technically speaking, a testator only names or nominates an executor in his will; the court makes the appointment.

A person can choose a friend, family member, attorney, corporate entity, or bank to serve as executor. The best choice for your situation depends on the people and circumstances involved. A Mississippi executor need not be a resident of the same county or state as the deceased; however, it is necessary that he be at least 18 years of age.

Give careful consideration to personal estate planning objectives and the consequences of each of the possible choices before making a selection of executor.

Many people choose a family member or friend thinking it is easier and cheaper for him to settle the estate, because he is familiar with it. This is not necessarily true. Most people do not share their total financial situation with friends. Even a family member may not be aware of all the intricacies of the estate. A family member or friend may take longer to settle the estate and incur unnecessary expenses, because he is unfamiliar with procedures and deadlines.

When a family member or friend serves as an executor, there is always the risk that a misunderstanding and hard feelings may arise. Certain family members may feel that the executor did not act impartially and was unfair in his actions. Sometimes they forget that even if the executor disagrees with the provisions of the will, he must carry them out anyway.

Friends and family members also may be so preoccupied with their own affairs that they may not have the necessary time and attention to devote to the problems of settling your estate. And, of course, the possibility exists that a family member or friend named as executor may die before you do. For this reason, you may want to name an alternate.

Another possibility for an executor is a bank with trust powers. Banks have the facilities, contacts, experience, and business judgment that may not be matched by an individual. In addition, banks provide continuity. A bank doesn't get sick, die, or move away. Usually, the bank selected to be the executor of an estate is the bank where the testator does business and he and his family are known.

An attorney can be chosen as an executor. Because of his professional education, he may be more familiar than the average citizen with the laws regarding probate action and provisions of income and estate taxes.

Before a person names an executor in his will, he should tell the person selected and explain what he wants done. He may find that the person selected does not wish to take on the added responsibility.

Is Bond Required?

A bond, generally equal to the value of the estate of the decedent, is required of administrators. It is also required of executors unless the testator, by will, directed that the executor should not be required to give bond. Even then, if the court has just reason to require bond, it is necessary that the executor be bonded.

Any creditor of the testator, under oath, may petition the court stating that he believes that he is in danger of losing his demand by the bad management of the estate. The executor is then required to give bond. If an executor, for any reason, does not give bond once the court has determined the need for it, the court may remove the executor and appoint an administrator to settle the estate.

Responsibilities

In general, an executor or administrator settles and distributes the estate of the decedent in accordance with the terms of the testator's will. This should be done as expeditiously and efficiently as is consistent with the best interests of the estate.

To accomplish this, the executor or administrator, perhaps with the assistance of an attorney, will need to do the following:

Carry out written instructions of the decedent relating to his body, funeral, and burial arrangements.
Locate all important papers and information.
Make application to probate the will or for appointment as executor no sooner than 5 days after death of decedent.
Select an attorney to handle the estate (if necessary).
Give notice of his appointment to heirs and devisees. Not later than 40 days after his appointment, the executor must indicate whether bond has been filed and describe to the court where papers relating to the estate are on file.
Take possession of estate property, as advisable.
Pay expenses for last illness, funeral and burial expenses, and other debts.
Give written notice, within 60 days after the decedent's death, to the Mississippi State Tax Commission on Form 03-030. The prescribed form is to be completed in full and calls for an approximation of the values of the various items comprising the gross estate of the decedent.
Within 9 months after the date of the decedent's death, file the Mississippi estate tax return with the Mississippi State Tax Commission, Woolfolk Building, P. O. Box 1033, Jackson, MS 39205.
Have property appraised.
Publish notice to creditors for debts executor may not know about.
Notify life insurance companies.
Prepare and file federal estate and income tax returns.
Arrange for the family's immediate living expenses.
From the estate, raise cash that will be needed to pay the state taxes, administration expenses, and other costs of settling the estate.
Satisfy charitable pledges in the decedent's will.
Deposit or invest liquid assets of the estate in federally insured interest-bearing accounts, readily marketable secured loan arrangements, or other prudent investments, if funds are not needed to meet debts and expenses currently payable.
Acquire or dispose of assets.

These are only a few of the numerous separate and distinct duties for which an executor or administrator can be accountable. The complexity of an estate determines other responsibilities.

How Much Does an Executor or Administrator Get Paid?

An executor or administrator is entitled to reasonable compensation for his services. The fee is considered income for taxation purposes.

Under Mississippi law, the court can allow to an executor or administrator not less than one percent nor more than seven percent of the value of the estate. In addition, the court may allow reimbursement for his necessary expenses in settling the estate. In determining the amount of compensation for an executor or administrator, many factors are considered, including: the amount of work making out the report; collecting and disbursing the money; the skill, responsibility, and amount of time involved; and the skillful, prompt, and efficient service in the speedy disposition of winding up and settling the estate.

A testator can fix the amount of compensation to be paid to an executor in his will. When this is the case, once the executor accepts the appointment as executor, he is entitled to no more than is specified in the will.

Executor or Administrator: An Important Role

An executor or administrator serves a very important function in the settlement of an estate. The selection of an executor should be made with careful consideration as to the capabilities of the person(s) considered.

Think Session

Whom have you chosen as executor for your estate? What were your reasons for this choice?
Have you been asked to serve as executor? Did you say yes or no? Why?

References

Information in this series is adapted from Estate Planning for Every Montanan by Marsha A. Goetting, Montana Cooperative Extension Service.

Lynn, Robert J. Introduction to Estate Planning. St. Paul, Minn., West Publishing Co., 1981.

Martin, Robert J. "Estate Planning: An Investment in Your Family's Future," Publication 1373, Cooperative Extension Service, Mississippi State University, 1990.

Milner, Dorothy Leggett. "An Introduction to Estate Planning." Research paper, Mississippi State University, 1978.

Mississippi Code 1972 (Annotated), Vol. 20, Title 91, Sections 91-1-1 through 91-7-1.

State of Mississippi Estate Tax Law, Mississippi State Tax Commission, 1978.

Quiz

The person in Mississippi who is named in a will to be responsible for settling an estate is called an ______.
1. a. executor
  b. administrator
A Mississippi executor or administrator need not be a resident of the same county as the decedent.
1. a. true
  b. false
A nomination to be an executor can be declined.
1. a. true
  b. false
Which of the following can be appointed to be executor?
1. a. family member
  b. friend
  c. attorney
  d. bank
  e. all of the above
Bond is always required of an executor.
1. a. true
  b. false
Bond is always required of an administrator.
1. a. true
  b. false
In Mississippi, the maximum amount an executor or administrator can be compensated for his services is ______.
1. a. 1 percent
  b. 3 percent
  c. 7 percent

Answers to the quiz

This publication is not designed as a substitute for legal advice. Rather, it is designed to help families become better acquainted with some of the devices used in planning an estate and to create an awareness of the need for such planning. Future changes in laws cannot be predicted, and statements in this publication are based solely on the laws in force on the date of printing.

By Beverly Riggs Howell, Ph.D., Extension Family Economics and Management Specialist

Mississippi State University does not discriminate on the basis of race, color, religion, national origin, sex, age, disability, or veteran status.

Publication 1746
Extension Service of Mississippi State University, cooperating with U.S. Department of Agriculture. Published in furtherance of Acts of Congress, May 8 and June 30, 1914. Ronald A. Brown, Director

Copyright by Mississippi State University. All rights reserved.

This document may be copied and distributed for nonprofit educational purposes provided that credit is given to the Mississippi State University Extension Service.

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Planning Your Estate Part 8 -- What is an Executor or Administrator?