When a testator drafts her will, she not only names individuals to inherit her property, but also appoints someone to complete the administrative task of transferring assets to heirs. This person called the executor carries out the testator’s instructions while complying with requisite legal procedures. She owes duties to the deceased testator, the heirs and the court that prohibit any in-dealing or dishonesty. After the testator’s death, the executor files the will in probate and begins administering the estate.
Step 1: Locate the probate court administering the will. Check first with the court in the county where the testator resided at death. Telephone the court to determine the probate search procedures in place. Some courts maintain a probate telephone line. You phone in, enter the name or date of birth of the deceased and receive probate information including the probate number. Other jurisdictions provide an interactive Internet site while all offer information to members of the public appearing at the court clerk’s window.
Step 2: Visit the court clerk’s office during regular business hours. Provide the court clerk with the probate file number and ask to see the file. The clerk provides the file and advises you where to review it. If the court recently opened probate, the file contains only a few documents. Review the documents. First determine whether the executor filed the will. In many jurisdictions, the law allows heirs to file the will in probate court, although an executor steers it through administration.
Step 3: Note the executor’s name, address and phone number, if the executor filed the will. If an heir deposited the will in probate court, review the will provisions to ascertain whether the testator named an executor. Although many wills name executors, the court does not void a will that fails to appoint an executor. If an executor’s name appears in the will, look further in the documents for notice that the executor accepted the appointment.
Step 4: Review the probate filings to locate a document appointing an executor. The court appoints an executor if the named executor is unable or declines to serve, or if the will fails to name an executor. If no document appears, the court has yet to make an appointment. Check back periodically until the file reflects the name, address and phone number of a court appointed executor.
An executor sometimes referred to as an executrix when a woman assumes the job—is the individual responsible for managing the affairs of a deceased person’s probate estate. A decedent can no longer own property, so everything he owned at the time of his death must be legally transferred to living beneficiaries. This is where probate comes in and what it accomplishes. It’s the legal process of making sure the decedent’s debts and liabilities are paid off from the cash and assets he left behind, then transferring ownership of what remains to his beneficiaries.
The Probate Process
Probate can last for months or even years in some cases if an estate is extremely complicated. The executor is responsible for managing the estate throughout the entire process. This typically involves seeking approval from the probate court before taking some actions, and it can involve numerous court filings and some court appearances. The executor must deal with beneficiaries, heirs, and professionals, such as accountants and appraisers. Her duties throughout probate occur in somewhat chronological order.
Appointing an Executor
A decedent will typically name her choice for executor in her will, and the judge will almost always appoint that individual unless beneficiaries object, and this also requires a separate lawsuit. Otherwise, if the will is silent or there is no will, a judge will usually appoint a close family member. Many states have statutes citing which relatives qualify and in what order of preference. The judge will grant the executor authorization to act on behalf of the estate through “letters testamentary” or “letters of administration.” He can provide these documents to various entities such as insurance companies or financial institutions to confirm that she has the legal authority to act on behalf of the estate and its beneficiaries.
Submitting the Will
The executor’s first order of business is to submit the decedent’s last will and testament to the probate court. This officially begins the process of opening the probate estate. The executor must then attend a hearing where a judge will determine if the will is valid; it meets the letter of the law in that state and contains no procedural errors.
This hearing also provides an opening in most states for certain individuals who have an interest in the estate to contest the will. They can then open a separate lawsuit to convince the court that it’s invalid and its terms should not be honored.
The executor must first identify all the decedent’s assets and gather them for safekeeping when it’s feasible. This might be the case if the decedent left a valuable piece of jewelry or an item of artwork. Property of this nature can’t be left unsecured so a family member or anyone else might freely walk off with it. Part of this process can be a literal hunt for assets, such as bank and investment accounts, insurance policies, or safe deposit boxes. The executor will typically go through the deceased’s personal papers and interview family members in an effort to track down all accounts that might exist so that he can take control of them. Some or all of these assets might be mentioned in his will, but the executor can’t simply assume that there are no other assets just because they’re not bequeathed to anyone. The decedent might have acquired them after he made the will, or he might have overlooked some. When all assets have been gathered and identified, the executor must then maintain them when necessary using estate funds. This can involve making sure that insurance policies don’t lapse, and that mortgage, car loans, and other installment loans are kept current. It will require setting up an estate bank account. The decedent’s personal bank accounts and cash assets are then transferred into this account so the estate can operate. The executor must submit a report or listing of all assets to the probate court in most states.
Making Notifications of the Death
The executor will make all necessary notifications of the death, including to beneficiaries named in the will if they’re not already aware. This might or might not be a formal process. Services, subscriptions, and benefits the decedent was receiving must be contacted and terminated as well. Credit cards should be officially canceled, and the Social Security Administration must be notified if the decedent was receiving benefits.
Paying the Decedent’s Debts
The decedent’s creditors must also be notified because the estate is responsible for paying his final bills and debts. Family members, beneficiaries, and heirs typically aren’t liable for these debts, no matter what creditors might insinuate, unless they’re cosigners on a particular loan or account. An exception exists for spouses in some states.
The executor must identify the deceased’s creditors, often through the same methods she used to pinpoint all his assets. She must send them notice that the decedent has died, and most states also require that she run a newspaper notice to ensure that unknown creditors are also alerted. Creditors can then make claims to the estate for payment.
The executor decides if the claims are valid and, if so, she’ll pay those debts from estate funds. She can also decline to pay certain debts if she feels they’re not valid. In many states, the creditor can then petition the court to override her decision. This usually requires that the executor appear in court to defend her position, often with an attorney paid for by the estate.
Closing the Estate
Finally, the executor will submit an accounting to the court detailing all actions and transactions he made on behalf of the estate. If the judge approves the accounting, he will then grant the executor authority to distribute the estate’s remaining funds and property to the beneficiaries named in the decedent’s will.
Identifying the Executor Before Probate Opens
If you know you’re a beneficiary or if you qualify as an heir, someone who is closely related to the deceased so you’re likely to inherit even if he didn’t leave a will – you should learn the identity of the executor in relatively short order. Her role is to inform you that the will is in probate. If you hear nothing, however, you’ll have to do some digging to identify her. This is easiest after the will’s been admitted to probate, but if it hasn’t, you can file something called a caveat with the probate court in many states. This document alerts the court that you want to be notified when and if a will is presented for probate. It becomes a matter of public record when this happens so you can get a copy and find out who the executor is.
Getting the Will From the Court
You can visit the courthouse and request a copy of the will from the clerk after it’s in the custody of the probate court. Some states, allow you to request a copy online. You may need a court case number for the probate estate, but many courts have searchable databases where you can enter the deceased’s name and find the number. You then can request a copy of the will, as well as all other documents that have been filed with the court on behalf of the estate. The executor’s name should appear on most of these documents, along with her contact information in many cases.
If there is no will, court proceedings are necessary to open an intestate estate. Someone will eventually be appointed to probate the estate. The proceedings are a matter of public record, so check court records periodically to find out who the court has assigned to the job. Many states provide this information online, but if yours doesn’t, pay a visit to the probate court clerk’s office periodically to keep abreast of the situation.
Demand for Account and Removal
An executor is legally liable to the estate beneficiaries for losses his actions cause. The beneficiaries or any other person with a legal interest in the estate, such as an unpaid creditor of the deceased, have the right to ask the probate court to demand an accounting from the executor if they believe she is stealing from the estate. The court orders the executor to provide an inventory list, a complete account of what she’s done so far, and supporting evidence, such as receipts and cashed checks. If the court finds the executor is stealing, her authority to act for the estate is revoked and she no longer has access to assets. Typically, the court names a new executor or administrator in her place.
Civil Lawsuit and Contempt
The interested parties harmed by the executor’s theft, typically the heirs, can sue the executor in the local civil court for the money back and associated damages, such as court expenses. An executor is who is stealing might also be found in contempt of the probate court. Contempt of court carries both fines and a possible jail sentence, but fine amounts and sentence length depend on the area and severity of the case.
Some wills require the executor to get a bond from an insurer, referred to as a probate or executor bond, to insure against loss to the estate because of the executor’s actions. If a bonded executor takes money from the estate, the heirs might be able to make a claim against the bond for the amount stolen. The insurance company that issued the bond pays the claim.
Powers of the Administrator (in cases of no will)
When someone dies without a will in Utah, an administrator, rather than an executor, must be appointed. The roles and duties of both are very similar in that the fiduciary’s task is to manage and distribute the estate assets to the rightful heirs or beneficiaries. However, where the executor must follow the wishes of the decedent set out in the will, the administrator must simply distribute estate assets to the heirs, which commonly involves turning non-liquid assets to cash. The fiduciary begins the process by liquidating the decedent’s stocks and bonds, emptying out bank accounts, selling any tangible items of value, and most importantly, selling real estate owned by the decedent during his or her life. All cash realized from the liquidation is deposited into an estate bank account. After satisfying creditor claims, legal fees, and other administration expenses, the remaining balance is distributed to the heirs-at-law, in equal shares. Unlike probate, where the last will and testament, as the controlling document, dictates what the executor can or cannot do, there is no will to refer to in an administration proceeding. There is no will for the Surrogate’s Court to reference, for example, showing that the decedent prohibited the sale of his home or intended a life estate for his elderly mother. Absent such language in a will prohibiting or delaying a sale, the property is sold by the administrator.
The Executor’s Power to Sell Property (decedent died with a will)
In a probate case, whether or not the executor has the power to sell a piece of property depends on the language of the will. In short, if the will does not disallow a sale, the executor can sell a property without the beneficiaries consenting. If the will is silent on the topic, or gives the executor absolute discretion to do as he or she sees fit with the property, we can assume the executor has the authority to sell. As in an administration proceeding, your reason for stopping a sale must be compelling in a probate proceeding.
If the transaction is fair, is in the best interests of the estate and is in line with the decedent’s wishes, then the executor can sell property without seeking consent and without notice. So long as the executor’s letters testamentary do not limit her right to sell, she can hire a real estate broker to list the home on the market, and sell the property without ever notifying the beneficiaries of the sale except when its time to distribute the proceeds.
If letters testamentary do contain limitations and language such as, for example, “the fiduciary is restrained from selling, encumbering, mortgaging, disposing the real property of the estate”, the executor must notify all interested parties of the terms of the proposed sale and seek court approval. The petition for approval to sell estate property must include the contract price, the terms of the sale, and a copy of the contract. The beneficiaries can then object if something is amiss. Some proper objections can be that the price is too low, all beneficiaries agree to keep the home, the contract includes unfavorable or prejudicial terms, the executor is self-dealing or there’s an apparent conflict of interest. Your dislike for the real estate agent or the executor is not grounds for objection. In sum, the executor does have a final say in which they choose as the probate lawyer and the real estate broker, in the list price and sale price, and the terms of the contract. This is provided that there’s no self-dealing, the legal fees and commission are reasonable, and the sale price is fair market value. The fair market value will depend on the recent sale comparisons in the area and the condition of the home. If the buyer to the contract is obtaining a mortgage for the purchase, ask the probate lawyer to see the appraisal report issued by the lender’s appraiser.
The report will detail the condition of the home and the appraiser’s determination of the market price. The fiduciary does not have a final say in how the money is distributed. The decedents must be followed and any deviation must be brought to the Surrogate’s Court’s attention for approval. If the will provides that the probate estate is to be split equally among the children, the executor cannot give more to one simply because she feels that child is more deserving. 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 regards 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.
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