When a person dies, all of the deceased’s possessions become a part of his or her estate, which must then be administered according to the will of the deceased person. The person who handles the administration of the estate is the “executor.” Just as a quick summary, estate administration refers to the process of collecting the estate, paying any debts or taxes owed by the estate, and distributing the remaining property of the estate to the beneficiaries.
The Executor’s Role In Richfield Utah
The executor is the person responsible for locating and collecting all of the deceased’s property, making sure any debts and taxes are paid off, and distributing the remaining property and money to the beneficiaries. The money to pay off any debts or taxes comes from the estate. In addition, the executor is entitled to a lawyer if he or she needs help with his or her duties. Some more specific examples of what an executor can be tasked with doing include obtaining a death certificate, initiating the probate process, filing paperwork in probate court, and contacting the beneficiaries of the estate. The executor is required to perform his or her tasks in accordance with the will and in compliance with the probate laws of each state. The executor is also required to perform his or her duties diligently and in good faith.
Choosing an Executor
There are very few restrictions for who can be an executor. Generally, the executor can’t be a person under the age of 18 and the executor can’t be a felon. There could also be restrictions on a person who lives out-of-state serving as an executor. Usually legal or financial knowledge isn’t necessary to serve as an executor because wills are usually straightforward. And, if the will is complicated or difficult to understand, the executor can consult with an attorney. Since there aren’t many restrictions or requirements for being an executor, usually people appoint a spouse, child, or sibling as the executor of their will. It’s important to choose a person who is honest, responsible, and organized. If you’re selecting a family member to serve as the executor it’s also a good idea to consider what impact the selection will have on your family. For example, if the youngest of three children is named as the executor, the two older children might feel that they were not trusted or worthy enough to serve as the executor. This can lead to problems between siblings, and maybe even a will contest.
Another factor to consider when selecting an executor is where the executor lives. It’s much easier for an executor to perform his or her duties if he or she is close to the majority of the estate’s assets. Finally, it’s a good idea to name an alternative executor in case the originally named executor can’t or doesn’t want to serve as the executor. Whoever you name as your executor, it’s important to let the person know that you want him or her to serve as your executor. Letting the person know allows the person to accept or decline to serve as the executor. You should also tell the person where your records are kept and probably give them a copy of your will.
Hiring an Attorney
If you’ve been named the executor of a will, you might need some guidance getting through the probate process. Generally, as an executor of a will, you are entitled to hire an attorney at the expense of the estate. Even if the will doesn’t provide for an attorney, if you have questions or concerns about being an executor, it’s probably a good idea to consult with an estate planning attorney.
What Does an Executor Do?
Serving as the executor of someone’s last will and testament can be an honor and the most terrifying experience of your life at the same time. By definition, an executor is entrusted with the large responsibility of making sure a person’s last wishes are granted with regard to the disposition of their property and possessions. When it boils down to essentials, an executor of a will is responsible for making sure that any debts and creditors that the deceased had are paid off, and that any remaining money or property is distributed according to their wishes. This is different than having “powers of attorney” which commonly makes health care decisions and is a personal representative of the person. Often, the power of attorney is necessary while someone is still alive, and executor of will occurs only after their death.
What Does an Executor Do? Oversees Disposition of Property and Possessions
Although the law doesn’t require an executor to be a lawyer or financial expert, it does require than every executor fulfill their duties with the utmost honesty and diligence. The legal term for this requirement is a “fiduciary duty,” which holds the executor to act in good faith with regards to a person’s will. An executor is not entitled to proceeds from the sale of property of the estate. Depending on the particular state, generally, an executor is only entitled to a fee as compensation for administering the will. Most states mandate that this fee be reasonable given the size or complexity of the will.
What Does an Executor Do? Fulfills Specific Duties
There are many duties that an executor of a will may have to fulfill, depending upon the complexity of the will and the property to be distributed. These duties normally include:
• Finding the deceased person’s assets. The executor is also responsible for keeping the assets safe until they can be properly distributed to those named in the will or to creditors. This management of assets can include deciding which and what types of assets to sell as well as what kinds of assets and property to keep.
• Deciding if probating the last will and testament in court is necessary. Probating a will is the process of getting a court to approve the validity of the will. The decision of whether or not to probate a will can often depend upon the laws of the state that the will is going to be administered in, as well as the value of the property that will pass via the will.
• Finding and contacting the people that were named in a will who are supposed to inherit money or property. The executor is generally in charge of making sure the property that is named in the will goes to the right people.
• Making sure the will is filed in the appropriate probate court. This is generally required by law even if the will does not need to go through probate.
• Wrapping up the deceased’s affairs. This can include everything from canceling credit cards that are still open to notifying a bank about the death of the individual. In addition, if the deceased person was already collecting Social Security benefits, the Social Security Administration should be contacted.
• Setting up a bank account for the estate. Executors are generally required to keep the estate’s money separate from their own funds. Setting up a bank account in the name of the estate can make paying off debts to creditors easier.
• Continuing necessary payments. The funds in the estate’s bank account can be used for making mortgage, insurance, and other recurring payments that need to be paid during the administration of the will.
• Paying off debts and creditors. In general, before any person named in a will can receive any inheritance, the deceased’s debts and creditors need to be paid off. The executor of the will should notify all creditors of the death of the individual and find out how they wish to proceed.
• Paying final income taxes. As the saying goes, the two things that are definite in life are death and taxes, and they even go together. Generally, the executor of a will is responsible for making sure that the deceased’s income taxes for the last year they were alive are paid.
• Ensuring the property distribution of the deceased’s property. Property that’s given through a will should be given as it’s recorded. However, if there is another property that isn’t named in the will, it should pass according to the laws of the state.
• It’s difficult enough to put a loved one to rest, but for many it is made more difficult by having to sort out the deceased’s financial affairs after the funeral. Personal representatives, executors and heirs alike are often left with this duty, but have little to no guidance on what their responsibilities are. Some people are lucky enough to know they have been named the executor years before their loved one dies. Others are caught completely unaware and find themselves dealing with complex financial issues at a time when they are mourning the loss of a loved one.
• Whether you are experienced with this responsibility or not, estate attorneys are an invaluable resource when it comes to dealing with your deceased loved one’s financial affairs and assets.
Estate attorneys are legal professionals who specialize in settling the affairs of a deceased person. They are sometimes called a probate attorney or lawyer and are instrumental in walking an executor through the probate process. These professionals also advise beneficiaries on issues related to the property and their inheritance.
Estate Attorneys Assist Executors
Executors are often overwhelmed with paperwork that needs to be completed in a timely manner upon a person’s passing. The guidance of an attorney in these matters can speed up the process and help ensure you don’t miss anything. Estate attorneys can help an executor:
1. Locate probate and non-probate assets
2. Obtain investment values and appraisals of the deceased’s properties
3. Collect life insurance proceeds
4. Advise on the payment of a decedent’s bills and outstanding debt
5. Determining what, if any, taxes are due and locating funds to pay for them
6. Assisting with the sale of the deceased’s properties
7. Settling disputes among beneficiaries
8. Accessing investment accounts
9. Keeping track of expenses
10. Working with the courts to obtain permission for actions needed to settle the estate
11. Preparing and filing documents required by the probate court
Sometimes the beneficiaries and the executor are different people, or the executor may be one of several beneficiaries. The attorney can help the non-executor beneficiaries too. If your loved one died without a will in place, the state will determine not only what the heirs receive, but also who they are. If minor children are involved, the state will determine guardianship. An lawyer can help guide you through these legal processes and be your advocate in court.
Designing A Plan
You can make things easier on your beneficiaries and executor by meeting with estate attorneys now. They will be able to help you create a plan that can help minimize your heirs’ tax burden and protect your assets. You can designate charities as beneficiaries, choose guardians for your children, set up trusts and create a power of attorney or a healthcare power of attorney. By designing an estate plan before you need it, these important decisions are decided by you, not the state, not your executor, not your beneficiaries. It is the single best way to ensure your wishes are met if you become mentally incapacitated or die. Whether you need help designing a plan, getting through probate as an executor or fighting for your rights as a beneficiary, estate attorneys can provide you with the guidance and support you need.
Ways To Avoid Estate Litigation
It’s a sad fact of life that litigation often arises between family members over inheritances. Even families on the best of terms can be torn apart by perceived slights or disagreements over a parent’s last wishes. To avoid this kind of infighting it’s best to develop a strong estate plan, or at the very least a will that spells out your final wishes.
Here Are Ways To Help Avoid Lawsuits Over Your Estate After You Pass.
1. Divide assets equally. Nothing is more likely to trigger estate litigation than treating siblings differently. The best rule of thumb is to divide everything equally among your children. If you have two children each gets half. If you have five, they all get one-fifth. Don’t favor the child who has a bigger family over the others and treat stepchildren the same as the others. If you are disinheriting a child, make sure that is spelled out in the legal documents.
2. Designate recipients of cherished possessions. If you want specific items to go certain heirs, spell it out in your will. This eliminates any question of whom Mom wanted her china to go to. You can even give the items to your heirs long before you pass. Just make sure you’re of sound mind when you do so or you run the risk of litigation when the slighted child argues you weren’t aware of what you were doing. It can be as simple as making a list of your possessions and designating who gets what.
3. Keep records of loans. Loaning child money and not specifying when, how or whether or not it is to be repaid is a recipe for disaster at probate. Always write down the terms of the loan. If the amount is to be deducted from the heir’s share of the inheritance it can be considered ”advancement.” If the loan is to be forgiven upon your death, say so.
4. Use contracts and trusts to transfer assets. Contracts are particularly useful in situations where there is a family business to hand over. If you have a certain heir you want to leave the business to, draw up a contract while you still can and sell the business to that person. Assets that are transferred by contract when you’re still alive are much less likely to be targets for litigation. A trust is a good choice if you want to transfer real property to a child or heir. A trust allows you to live out your life on the property with ownership transferring to your heir after a set period of time.
5. Prove you’re of sound mind. One of the biggest arguments in estate litigation is that Mom or Dad wasn’t of “sound mind” when he or she signed the document. Put an end to this argument before it starts by having your doctor and a psychiatrist evaluate you and sign an affidavit that you are mentally sound as of the date you sign the will.
6. Add a “no-contest” clause to prevent litigation. No contest clauses are great protection against estate litigation. These clauses state that any beneficiary who contests the will forfeits his or her interests in it. As long as the beneficiary is receiving something he or she really wants via the will, it is a very effective tool to keep them in line.
7. Create your will now. If you wait until you’re extremely ill to specify your wishes you run the risk of litigation arising upon your death. Not only will arguments arise that you weren’t of sound mind or didn’t understand what you were signing, it’s entirely possible that these arguments could end up being true. You may, indeed, be so unwell that you are easily manipulated into making decisions you normally wouldn’t make.
If you are truly concerned that your wishes will be challenged, then you owe it to your heirs to work with an Richfield law attorney who is experienced with wills and estate planning who can help you design a plan that fulfills your last wishes.
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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