Losing a family member or friend can be a very sad and stressful time for every person involved. Serving the role of executor can feel especially daunting during this time of grief. As overwhelming as it may seem, knowing where to begin can alleviate much of the burden. At Johnson Investment Counsel and Johnson Trust Company, we support and assist many clients through the probate process in their role as executor of a loved one’s estate. If you are named an executor, we recommend you work with an attorney to guide you through this process as noted below. This primer will provide a solid base of knowledge and some context on the myriad legal terms and issues executors may encounter.
First Thing To Know: Understand Your Fiduciary Liability
As executor, you take on the legal duty of ensuring that probate assets are properly managed while in your care, that they pass to the proper people with the proper procedures, and that beneficiaries are properly notified along the way. It is essential to understand and comply with each deadline established by the court. During probate administration, you may be required to post a bond or provide proof of surety (an agreement with an insurance company to cover your liability) before appointment so that the court can hold you accountable for the administration of the estate. In some situations, the will waives the requirement for bond or surety, but the court will ultimately determine when to require bond.
Step 1: What is the Probate Court and What Should an Executor Do First?
Probate is the court-supervised process of settling a decedent’s final affairs. This may be done with or without a Last Will and Testament. If a decedent dies with a valid will (known as “testate”), the person appointed by the court to administer the estate is called the executor. If the decedent dies without a will (known as “intestate”), the person appointed is called the administrator. The administrator or executor’s role is to administer the deceased person’s probate estate. The process includes securing the assets, settling outstanding liabilities, and distributing assets to the beneficiaries. If you are named as the executor, the first thing you should do is obtain the original will to file with the court. In most states, to be eligible to serve as executor (or administrator) the person named (or applying) must be a resident of the state where the decedent was a resident. If the person named (or applying) is not a resident of the same state as the decedent, the person must be related to the decedent by blood or marriage. If you are named as executor, you should determine whether a probate estate exists and whether you should apply to the court to serve as executor.
Step 2: Consult an Attorney
Before filing forms or getting caught up in probate proceedings, we highly recommend you consult with an attorney to determine what legal assistance you will need to complete the probate process. The probate process is controlled by state law, which means that each state’s processes and rules may differ. To complicate things a bit more, within each state probate rules may differ by county. Probate administration can also differ based on the type of assets in the estate, the value of the assets, and many other factors. Retaining an experienced attorney is money well spent. He or she can help you understand your legal responsibilities and determine which procedural avenue best fits your circumstances. There are online resources and databases (including the local bar association website) to help you find an attorney experienced in probate administration in your area. You can save time, avoid headaches, and protect yourself from liability by consulting with an attorney as your second important step.
Step 3: Navigating The Probate Process
The most significant and next important task is to gather information. Even if you hire an attorney, your role as executor requires providing information to the attorney, the court, and the beneficiaries. To fulfill these duties, you must identify beneficiaries, assets, and debts and collect information and documentation about each. Some assets may pass to beneficiaries outside of probate (i.e., assets in trust, accounts with beneficiary designations, assets jointly titled with rights of survivorship) and in most cases, those assets will transfer without court involvement. To transfer these assets, you will likely need a death certificate, contact information for each financial institution holding assets, and beneficiary information. For all other assets (including personal items), you will follow the probate estate process in your jurisdiction.
Administering a probate estate requires organization, patience, and time. To begin the probate court process, you as the named executor must apply to the court to be appointed. All beneficiaries will be notified about your application. Upon appointment, you will be issued Letters of Authority (similar to a court order) giving you the legal power to perform your executor duties. When performing your duties, you should retain a file of all receipts, paperwork, and documentation. Be aware that sometimes probate requires ongoing estate administration procedures (i.e., formal court accountings/audits) which can continue for multiple years. As administrator or executor, you should manage the expectations of the beneficiaries and understand your role throughout the process.
Checklist of Items to Discuss with Your Attorney:
- Information for each beneficiary, which includes the mailing address, email, phone number, date of birth, and social security number.
- There may be individuals who are not included in the will who are entitled to be notified of the decedent’s estate administration. You should alert the attorney of any estranged family members or persons excluded from the will, especially if such persons may be uncooperative.
- Determine creditors’ claims or outstanding debts as these add complexity to the probate process and require additional planning as to timing of administration.
- Know the total assets: If the total assets of the estate are below a certain amount and fall within statutory requirements, you may be able to avoid parts of the probate process. An attorney can help you determine if this applies to the estate.
- Potential Fee for Services? You may be entitled to a fee for your service as executor and your attorney can help you calculate the fee.
Bottom Line: Honoring Your Loved One
Serving as an executor is a special way your loved one is entrusting you to carry out their wishes when they are no longer living. Though the task seems daunting at the start, it is a manageable responsibility and you should always start by seeking legal counsel. It’s also wise to sit down with the testator (the person who creates the will and names you executor) while alive and of sound mind so you can understand their requests and identify the location of critical documents and information. At Johnson Investment Counsel and Johnson Trust Company, estate planning and simplification of the process for those who will be administering your estate in the future is part of our ongoing discussion with our clients. We are happy to talk to you or your loved ones about planning your legacy and are here to answer questions when you step into your role as executor.