When a loved one passes away, one of the first things people typically do is to look for a Last Will and Testament. One reason they do that is because if the decedent left behind a valid Will, that document will indicate who the decedent appointed to serve as the Executor of his/her estate. In my practice, I often speak with surviving family members/loved ones who recently learned that they were appointed to be the Executor of an estate; however, they are sometimes less than enthusiastic about serving in that position. As a Durham and Chapel Hill probate attorney, I would like to take this opportunity to explain what to do if you don’t want to be the Executor of an estate.
Probate for the Beginner
Before discussing the job of Executor specifically, it helps to learn a little about the overall process of probate first. Because most people leave behind an estate when they die, the law has a vested interest in making sure the assets included in that estate are properly handled. Probate is the legal process that identifies, values, and eventually distributes the assets controlled by the Will. Ordinarily, the Executor has no control over or responsibility for assets passing outside of the Will, such as by beneficiary designation filed with a financial institution or under a Living Trust. Probate also allows a Will to be authenticated or challenged (if one was left behind), creditors to be notified and file claims against the estate, and all debts of the estate to be paid. If the decedent executed a Last Will and Testament prior to his/her death, that Will should indicate who the decedent wanted to be the Executor of the estate.
Even though the Will names the Executor, the person named does not become the Executor until appointed by the Court. The Executor gets his or her powers from the Court and the related statutes and has responsibilities to the beneficiaries under the Will, the creditors of the estate, those who provide services to the estate, the decedent, and the Court.
What Does an Executor Do?
Sometimes, it causes a lot of stress for family and friends when they have no idea what their responsibilities as Executor, Trustee, Power of Attorney or Health Care Power of Attorney require. That is why several years ago, at Clarity Legal Group®, we instituted an annual Fiduciary School for our clients and their family members and friends who are serving in one or more capacities under the client’s estate plan, including those serving as Executor under Wills. We think that this kind of education builds comfort and confidence on the part those named, establishes what might be a helpful relationship between those named and Clarity Legal Group® (so we can help when the time comes), and that this kind of education works best when repeated periodically.
The probate process will not be the same for all estates; however, there are some common duties and responsibilities you can expect to take on if you accept the position of Executor, including:
- Identifying and securing estate assets. Promptly after learning of the decedent’s death, the Executor of the estate must try to identify and secure as many estate assets as possible.
- Initiating the probate of the estate. An application for appointment as Executor (called Application for Letters Testamentary) along with an original copy of the Will and a certified death certificate are required to be filed with the appropriate court in order to get probate started. How soon this needs to be done depends upon the circumstances. Sometimes, doing this is far from urgent.
- Categorizing, inventorying, and valuing estate assets. Because not all assets are probate assets, all assets must be categorized as probate or non-probate.
- Notifying creditors. Creditors must be notified and given an opportunity to file a claim against the estate.
- Reviewing creditor claims. The Executor must review all claims submitted and approve or deny each one. At Clarity Legal Group®, we will help the Executor in making these decisions. Approved claims are paid out of estate assets, or under the decedent’s Living Trust in many cases. Payment of claims should be carefully documented, as the Court will require very specific evidence of these payments. Again, the attorneys at Clarity Legal Group® will help with this process.
- Defending against challenges. In the event that someone decides to challenge the validity of the Will submitted for probate, the Executor is responsible for legally defending the Will throughout the ensuing litigation.
- Managing assets. Throughout the entire probate process, the Executor has a duty to manage and protect all estate assets until they are transferred to a new owner.
- Calculating and paying estate taxes. The Executor must determine if any federal and/or state gift and estate taxes are due from the estate and any tax debt owed must be paid. The Executor may have significant additional tax related responsibilities in large estates.
- Transfer assets to beneficiaries and/or heirs of the estate. At the end of the probate process the Executor will transfer the remaining estate assets to the beneficiaries specified in the Will.
Do I Have to Accept the Job of Executor?
One benefit to executing a Will is the ability to appoint someone as the Executor of your estate. For many people, it is a comforting thought to know who will oversee their estate assets after they are gone. The court, however, must approve that appointment and make the appointment official. If someone recently passed away and named you as the Executor of their estate, you are not obligated to accept that appointment. Maybe you recently moved out of state and acting as the Executor would not be practical. Your job and/or family obligations might not leave you with enough time (or energy) to serve as the Executor. Or it could be that you simply don’t want to take on the responsibility. The good news is that you can turn down the job of Executor without any repercussions.
Often there is a back up or successor Executor named under the Will. If you are named first, you should discuss your choice not to serve with the successor, to facilitate initiation of the Probate by the successor. You as the person choosing not to serve as Executor will be required to file a document renouncing your right to appointment. Of course, where there is competent legal counsel, that probate attorney will make sure all of this is done properly.
There’s more to it than this summary can provide. I hope I’ve given you a basic understanding of the responsibilities which might help you decide whether you want to serve in this important capacity.
Contact a Durham Probate Attorney
If you have additional questions or concerns relating to the probate of an estate, or the job of Executor, please contact a one of the probate, trust and estate administration attorneys at Clarity Legal Group® by calling us at 919-484-0012 or contact us online.