A Last Will and Testament serves as the foundation for most estate plans. When you create your Will, one of the most important decisions you will need to make is who to appoint as the Executor, known as the Personal Representative in New Mexico, of your estate. The Albuquerque estate planning attornies of Morris Hall urge you to choose the right person as your Executor when the time comes for you to execute your Will.
When an individual dies, the law requires the deceased person’s (called the decedent) estate to go through the legal process known as probate. If the decedent died testate, meaning with a valid Last Will and Testament in place, the individual named as the Executor in that Will is the person who will oversee the administration of the estate during the probate process. Probate can involve many complex legal and financial issues. If an Executor is not well versed in the law and/or the world of finance, he/she could make costly mistakes, resulting in both the loss of assets to the estate and unnecessary delays in distributing to the beneficiaries of the estate. To avoid this outcome during the probate of your estate, take the time now to learn what your Executor’s duties and responsibilities will be and then appoint the right person to the position.
Duties and Responsibilities of an Executor
An Executor has a wide range of duties and responsibilities during the probate of an estate. Some of the most common of those include:
- Gathering estate planning documents. Your Executor may be grieving your loss; however, he/she must act quickly to prepare for the opening of probate. An original copy of the decedent’s Last Will and Testament must be located and certified copies of the decedent’s death certified ordered. Any additional estate planning documents should also be located and secured.
- Identifying, locating, and securing assets. As soon after the decedent’s death as possible, the Executor should start identifying and securing estate assets. A preliminary decision must also be made regarding what type of probate is required – formal, informal, or an alternative for small estates.
- Categorizing and valuing assets. Eventually, the Executor must obtain a date of death value for all estate assets. Initially though, he/she must decide if they are probate or non-probate assets because some assets bypass the probate process entirely.
- Initiating probate. To open the probate of an estate, the Executor must obtain a certified copy of the death certificate, a signed original copy of the decedent’s Will, and a petition to open probate. By this point, most Executors have retained the services of an experienced estate planning attorney who will prepare the necessary petition.
- Notifying creditors and reviewing claims. Known creditors may be notified individually. Unknown creditors are notified via publication in a local newspaper. Creditors then have a statutory amount of time to file a claim against the estate. The Executor, must review all claims and approve or deny them.
- Litigating any challenges. If a Will contest is filed, the Executor is required to defend the Will submitted for probate throughout the litigation that will follow.
- Paying taxes. The Executor must determine if any state or federal gift and estate taxes are due from the estate and, if so, pay the tax debt out of estate assets.
- Distributing assets. Finally, the Executor must prepare any necessary legal documents to effectuate the transfer of the remaining estate assets to the intended beneficiaries.
Choosing the Right Executor
Although it may be tempting to just name a spouse or close friend as your Executor, consider the following questions to ensure that you appoint the right person for the job:
- Will this person be grieving your loss? If so, can he/she get a handle on that grief sufficiently to act as Executor?
- Does the individual have a legal or financial background that might be beneficial during the probate process?
- Does this person have the time to devote to probating your estate?
- Does the person live too far away to be the Executor?
- Is the proposed Executor good at conflict resolution?
- Will the appointment of this person spark conflict?
- Does the individual want to be your Executor? Never assume the answer to this question is yes.
Contact an Albuquerque Estate Planning Lawyer
For more information, or if you have additional questions or concerns about choosing your Executor, or you wish to get started creating your Will, contact the experienced New Mexico estate planning attorneys at Morris Hall PLLC by calling 888-222-1328 to schedule your appointment today.