The Executor of a Will is legally responsible for taking care of a deceased person’s remaining financial obligations. When a person writes their Will, they name the person they would like to serve as the Executor. Sometimes, they choose an Executor by talking to family members and coming to an agreement. Other times, it comes as a complete surprise to the person who was named. Whether you knew it was coming or not, when a loved one passes away, and you are named as Executor, you need to know what to do, and you need to know now!
You Are Not Obligated to Take the Job
The first thing you need to know is that just because someone named you in their Will, that doesn’t mean you are under any legal obligation to serve as Executor. By naming you, the person is simply making a recommendation. It is a big job, and you can certainly turn it down if you do not feel up to the task. Some important things to be aware of if you decide to accept the role include the following:
- You will have a fiduciary duty to the estate. This means that as the Executor, you are legally obligated to act in the best interests of other parties. It also means that you can be held liable—and sued—if you fail to do so.
- You will be expected to act in the best interests of a lot of people. Not only do you have to act in the best interests of the beneficiaries of the estate—who could be your family members—but you also have to protect and preserve estate assets.
- You will have to manage conflicting interests. Acting on behalf of both the estate and the people who are supposed to inherit from it can lead to conflicts. It is up to the Executor to manage these conflicts.
- You cannot consider your own self-interest. You have to do all of this with no regard for your own interest in the estate, even if you are also a beneficiary.
If you believe you are capable of fulfilling the duties of the Executor, your next step is to determine if there is even a job for you to do.
Does the Estate Need to Be Probated?
The overarching duty of an Executor is to get the estate through the Probate process, but not every estate has to be probated. If the bulk of the assets are held in Trust or in accounts with named beneficiaries, you may not have to go through Probate at all. If the deceased did not own a house, and their only assets are personal items and furniture, it probably isn’t necessary to Probate the estate, which means there is nothing for you to do.
You Do Not Become an Executor Automatically
So, you’ve decided you’re up to the task, and you’ve determined that there are assets to be Probated, so what’s next? Well, again, just because the deceased expressed their wishes that you serve as Executor, that doesn’t mean you automatically get the job. Once the court has validated the will, you will have to attend a hearing to decide if you are qualified to serve as the Executor. It is required by law that you have an attorney with you when you appear in court. This is because the Probate process is very complicated, and the court needs assurance that you will have legal guidance throughout the process. In addition to having an attorney, you must show the judge that you are not:
- Mentally incapacitated
- A convicted felon
- In debt to the deceased
- Unqualified in some other way
You will be asked questions in court, and it will be up to you to convince the judge that you are capable of handling the tasks required of the job. After you swear an oath to uphold the duties, you are good to go!
Then, the Real Work Begins
All of these steps must be completed before the Will is actually executed. At this point, you have been appointed, and you have a lawyer to help you through the probate process. This is why it is important that you choose a lawyer for your hearing who is qualified in this area of the law. The Estate Planning & Asset Protection team at Ross & Shoalmire PLLC has the experience you need to help you in your role as Executor. Feel free to contact us at any point in the process. We’re here to help!