Did you recently find out you were appointed the Executor of a Last Will and Testament of someone who recently died? If so, and the appointment comes as a surprise, you are undoubtedly wondering what you are supposed to do now. Unfortunately, people frequently appointment someone as the Executor of a Will without discussing the appointment with the appointee. When the time comes to fulfill the duties and responsibilities of an Executor, the individual appointed to the position may have very little idea what to do. If you find yourself in this position, the first thing you should do is retain the services of an experienced estate planning attorney to provide you with advice and guidance throughout the probate of the estate. You should also have a basic idea of what the job of Executor entails.
The Purpose of Probate
When someone dies, their estate typically has to pass through the legal process known as the “probate.” Probate serves a number of important functions, including:
- Identifying, locating and valuing estate assets
- Allowing creditors to file claims against the estate
- Ensuring the taxes owed by the estate are paid
- Transferring estate property to the intended beneficiaries or legal heirs of the estate
The overall job of an Executor is to oversee the probate process and ensure that estate assets are protected and eventually transferred to beneficiaries according to the terms of the decedent’s Will.
The Probate Process
Although every estate s unique, there are a number of steps that are common to the probate of most estates, including:
- Opening probate – the first thing an Executor must do is to initiate the probate process. To do that, the Executor must submit the original Last Will and Testament along with a petition to open probate to the appropriate court. The Executor must also ask the court to officially designate him/her as the Executor. If the decedent appointed the individual in his/her Will this is usually just a formality.
- Identifying and locating assets – all assets owned by the decedent, or in which the decedent had any ownership interest, must be identified and located. This includes both real and personal property as well as tangible and intangible assets. Depending on the size and complexity of the estate, as well as how organized the decedent’s records are, this can be a daunting task.
- Valuing estate assets – a “Date of Death,” or DoD, value must be obtained for all estate assets. This may require you to hire professional appraisers if the assets are things such as real property, business assets, or valuable personal property.
- Notifying creditors – creditors of the estate must be notified that probate is underway. Known creditors can be notified personally; however, notice of the probate of the estate must also be published in a local newspaper in order to notify unknown creditors.
- Reviewing creditor claims – creditors of the estate have a statutory time period within which they must file a claim in most circumstances. Once a claim is filed the Executor must review the claim and approve or deny it. Of approved the claim is paid out of available estate assets. When sufficient liquid assets do not exist to pay the claims estate assets may need to be sold.
- Defending the estate – if a challenge is filed against the estate, such as a Will contest, the Executor must defend the Will submitted to probate.
- Protecting estate assets – at all times during the probate process the Executor of the estate must protect estate assets. In the case of real property this may require maintenance and upkeep.
- Paying estate taxes – the Executor must make sure that all personal and estate taxes are paid before any assets are released to beneficiaries.
- Transferring estate assets to beneficiaries or heirs—finally, the Executor must execute all documents required to legally transfer the remaining estate assets to the intended beneficiaries or heirs of the estate.
Contact Us
Please join us for one of our upcoming seminars. If you have additional questions or concerns about the duties and responsibilities of an Executor, or would like to retain an estate planning attorney to help you in your role as Executor of an estate, contact the experienced North Carolina estate planning attorneys at Clarity Legal Group by calling (919) 484-0012 to schedule an appointment.
Mark Costley
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