It has been said that the only certain things in life are death
and taxes. Upon one's death, all the property and various
things that one accumulates during their life must be passed to
others. An Executor is the person chosen by the decedent in a Will
to handle this transition. If a person dies intestate, that is,
without a Will, then the personal representative will be called an
Administrator. For purposes of this article, we will refer to
either an Executor or Administrator as the Executor of an
estate.
In West Virginia, every estate administration must go through five
basic steps. The tasks that an Executor must accomplish to handle
the estate administration process include finding and controlling
all of the assets of the decedent, paying any debts, taxes and
claims against the decedent's estate, and distributing the
balance of the estate to the appropriate persons. The time frame
for an estate administration in West Virginia is from six months to
several years. However, most estates are administered in less than
one year.
The first step in administering a decedent's estate is to
present the decedent's Will for probate and qualify as Executor
of the estate in the decedent's county of principal residence
under the jurisdiction of the County Commission. West Virginia law
mandates that a person having custody of a Will must deliver the
Will to the clerk of the county commission or the executor named in
the Will within thirty days of the testator's death. The
Executor must then offer the Will for probate within a reasonable
time. If a decedent dies without a Will, then there is a priority
system as to who may qualify as the personal representative within
the first thirty days after the decedent's death. After thirty
days, any person may qualify as the personal representative.
Second, the Executor must prepare an inventory of the
decedent's estate. The Executor must prepare an Appraisement of
the Estate (for things owned by and/or titled in the decedent's
name at death) and a Nonprobate Inventory of the Estate (for assets
that pass to others without administration by virtue of titling
and/or contract). In order to file the Appraisement and the
Nonprobate Inventory, it is necessary to gather information
concerning the decedent's real estate, tangible personal
property, shares of corporate stock, money and any other assets the
decedent owned at death. The Appraisement and Nonprobate Inventory
must be filed within ninety days of the qualification of the
Executor. Any Executor who fails to comply with this requirement,
without reasonable cause, can be charged with a misdemeanor.
The third step in administering a decedent's estate is to pay
the debts and administrative expenses of a decedent's estate.
These include funeral expenses, fees for accountants and attorneys,
Executor's commissions, and miscellaneous administrative
expenses, such as utilities, medical expenses, and tax liabilities.
An Executor is entitled to reasonable compensation in the form of a
commission on the assets subject to his or her administration. The
amount of the Executor's compensation is fixed by statute and
can range from one percent to five percent of the value of the
assets subject to administration.
Fourth, the Executor must file all tax returns on behalf of the
decedent's estate and, where applicable, pay any taxes due.
These tax returns include the decedent's final federal and
State income tax returns and the federal and State fiduciary income
tax returns. If applicable, an Executor must also file an estate
tax return and gift tax returns. In addition, an Executor is
required to file annual accountings itemizing the receipts,
disbursements, and distributions of the estate.
The final step in administering a decedent's estate is to make
a distribution of assets to the beneficiaries of the estate. Under
West Virginia law, an Executor is not required to distribute the
assets of a decedent's estate until the filing and approval of
a final settlement of accounts and entry of an order discharging
the Executor. A complete final settlement of accounts may be waived
by the beneficiaries of a decedent's estate and the Executor
may file a short form settlement or waiver of final
settlement.
In sum, when the inevitable happens, a decedent's assets and
liabilities must be accounted for and the balance distributed to
the decedent's beneficiaries in a timely and orderly fashion.
The Executor is just the person for the job.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
