For most people, a Last Will and Testament serves as their first estate planning document. When creating your Will, you will likely be focused on the decisions that must be made regarding the distribution of your assets. Like many people, you may not spend much time contemplating your choice of Executor. That, however, would be a mistake. An estate planning attorney at Morris Hall PLLC explains the duties and responsibilities of an Executor to help you understand why appointing the right person is so important.
Appointing Your Executor: What To Know
- Initiating the Probate Process. As soon after your death as possible, your Executor must locate an original copy of your Will as well as obtain several certified copies of your death certificate. Both of those documents, along with a petition to open the probate of your estate, must be submitted to the appropriate probate court to get the probate process started. Unless your estate is small enough to qualify for an alternative to formal probate, your Executor will likely retain the services of an experienced estate planning attorney to help at this point; however, your Executor will remain responsible for overseeing the probate of your estate.
- Managing Estate Assets. Your Executor must identify and locate all estate assets. All assets, however, are not required to go through the probate process. Consequently, your Executor must review all assets and decide which ones are probate assets and which are non-probate assets. Common examples of non-probate assets include assets held by a trust, proceeds of an insurance policy, and certain types of jointly-held property. Your Executor is also responsible for securing and managing all estate assets throughout the probate of the estate.
- Next, your Executor is required to notify all creditors of the estate that probate is underway. Known creditors may be contacted personally; however, notice must also be given to unknown creditors. This is accomplished by publishing a notice of probate in a local newspaper. Creditors then have a statutory period of time within which they must file claims against the estate. Your Executor must review all claims and approve or deny each one. Approved claims must then be paid out of estate assets. If your estate lacks sufficient liquid assets to pay all creditors, your Executor must decide which assets to sell to raise the needed funds. If the estate lacks sufficient assets to pay all creditors, creditors are paid according to priority.
- Defending the Estate. Sometimes, someone files a challenge to your Will, alleging that the Will is invalid for one reason or another. If that happens, your Executor is required to defend the Will throughout the ensuing litigation. Your Executor may also be required to represent your estate if a creditor appeals a denial of claim. Although your Executor will undoubtedly hire an attorney to represent your estate if the estate does become involved in litigation, your Executor remains responsible for the overall outcome.
- Calculating Estate Taxes. Every estate is potentially subject to federal gift and estate taxes as well as state taxes if applicable. Your Executor is responsible for calculating, preparing, filing, and paying (if applicable) all state and federal taxes. This can be a cumbersome job that often requires the assistance of additional professionals.
- Transferring Ownership and Distributing Assets. At the end of the probate process, your Executor’s last duties include filing a final inventory with the probate court, if required to do so, and effectuating the legal transfer of the remaining estate assets to the intended beneficiaries and/or heirs of the estate.
Choosing the Right Executor
By now, you should have a much better understanding of the numerous and varied hats an Executor must wear during the probate of an estate. Moreover, if you appoint someone without thinking through your appointment, you will almost certainly appoint someone very close to you, such as a spouse or close friend. That person will be grieving for some time following your death, making them a less than ideal candidate for the position of Executor. The best way to choose the right person for the job is to discuss your options with your estate planning attorney when you sit down to create your Will.
Contact our Estate Planning Attorneys
For more information if you are appointing your executor, please join us for an upcoming FREE seminar. If you have additional questions about the duties of an Executor, or you need help deciding who to appoint as your Executor, contact an experienced estate planning attorney at Morris Hall PLLC by calling 888-222-1328 to schedule your free consultation today.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please contact an attorney in your community who can assess the specifics of your situation.
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