When you create your estate plan, one of the most importance considerations should be deciding who will oversee the probate of your estate. This decision is made in your Last Will and Testament when you appoint an Executor. The Woburn estate planning attorneys at DeBruyckere Law Offices explain the importance of choosing the right person to oversee the probate of your estate.
What Does an Executor Do?
The person you appoint as Executor in your Will is responsible for administering your estate. Usually, that entails overseeing the probate of your estate. Among the most important duties and responsibilities of an Executor are:
- Identifying and protecting the estate assets. The first thing any Executor must do is to locate all relevant estate planning documents. These documents should provide information regarding the estate assets which must all be identified and secured at the beginning of the probate process.
- Notifying creditors and paying claims. All known creditors can be personally notified that probate is underway but for unknown creditors, the Executor must notify them via publication in a local newspaper. Creditors have a statutory period, depending on how they were notified, within which they must file a claim against the estate, or they lose the ability to do so. As the claims are submitted, the Executor needs to evaluate each claim filed and approve or deny the claim.
- Litigating any claims. Sometimes the probate of an estate proceeds without a hitch and with no sign of a dispute; however, disputes are far from uncommon during the probate of an estate. If a beneficiary or heir questions the validity of the Will submitted for probate a Will contest might be initiated. The Executor is required to defend the Will throughout the ensuing litigation. In addition, creditors whose claims were denied also have a right to appeal that denial directly to the court.
- Calculating and paying taxes. Every estate is potentially subject to federal (and sometimes state) gift and estate taxes. The Executor is responsible for determining if the estate owes estate taxes and, if it does, the tax must be paid out of estate assets. An error in the calculations used on the estate tax return could be devastating to the overall probate of the estate.
- Distributing estate assets. The idea behind creating a Will is to ensure that the Testator’s estate assets are distributed according to his/her wishes after death. As such, there should be assets left over after all approved claims are paid, including any taxes owed. The Executor is responsible for preparing any legal documents necessary to effectuate the transfer of the remaining assets to the intended beneficiaries and/or heirs of the estate.
Appointing Your Executor
It may be tempting to appoint someone close to you, such as a spouse, sibling, or best friend, as your Executor because you know they care about you; however, caring about you doesn’t ensure that someone is capable and/or willing to properly administer your estate. Instead, ask yourself the following questions when considering someone to be your Executor:
- Will this person be grieving your loss? If so, can he/she get a handle on that grief sufficiently to act as Executor?
- Does the individual have a legal or financial background that might be beneficial during the probate process?
- Does this person have the time to devote to probating your estate?
- Does the person live too far away to be the Executor?
- Does your estate include real property that will require management during the probate of your estate? If so, you really need a local Executor.
- Is the proposed Executor good at conflict resolution?
- Will the appointment of this person spark conflict?
- Does the individual want to be your Executor? Never assume the answer to this question is yes.
Contact Woburn Estate Planning Attorneys
If you have additional questions or concerns, please contact the Woburn estate planning attorneys at DeBruyckere Law Offices by calling our New Hampshire office at (603) 894-4141 or our Massachusetts office (978) 969-0331 to learn more or visit our website at https://dadlawoffices.com.
In that case, someone may petition to administer your estate but the court will have to approve that petition. If no one petitions, the court will appoint someone.
Only you can decide who to appoint; however, consider the fact that your spouse may be dealing with a tremendous amount of grief and may not be the best choice.
Yes. You can appoint your estate planning attorney to be your Executor.