Whether you have been notified that you were appointed as the Executor of an estate, or you are planning your own estate and need to appoint an Executor, it is important to understand the duties and responsibilities of an Executor. “Executor” is also sometimes referred to as “Personal Representative”. Unfortunately, people frequently name someone as their Executor without taking the time to contemplate what it means to be an Executor and, therefore, whether or not the individual is actually the best person for the job. To make sure you don’t make that mistake, or to help you plan for your own role as Executor, the Andover estate planning lawyers at DeBruyckere Law Offices explain the role of Executor.
Why Is Probate Necessary?
When an individual dies, the law requires the decedent’s estate to go through the legal process known as probate. If the decedent died testate, meaning with a valid Last Will and Testament in place, the individual named as the Executor in that Will is the person who will oversee the administration of the estate during the probate process. If the decedent died intestate, meaning without a Will, any competent adult can volunteer to be the Personal Representative of the estate and oversee the probate process. If no one volunteers, the court must appoint someone, usually a local attorney.
What Is Involved in the Probate Process?
The reason it is so important to take the time to consider the position of Executor before you appoint someone is that the position requires the individual to handle a wide range of duties and responsibilities, many of which require some degree of legal and/or financial skill or experience. Most Executors do retain the services of an experienced estate planning attorney to assist them, particularly if the estate must go through formal probate; however, the Executor remains ultimately responsible for the probate of the estate. Common duties and responsibilities of an Executor include:
- Estate assets – as soon as possible after the decedent’s death, all estate assets must be identified, located and secured. A date of death value for all assets must also be obtained. Prior to opening the probate of the estate, the Executor must determine which estate assets are probate assets and which are non-probate assets because the non-probate assets bypass the probate process and may be distributed to beneficiaries immediately.
- Opening probate – an original copy of the decedent’s Last Will and Testament, along with a petition to open probate must be submitted to the appropriate probate court to get the probate process started.
- Creditors – the Executor must notify known creditors individually and unknown creditors via publication in a local newspaper. All claims filed by creditors must be evaluated by the Executor and approved or denied. If approved, the claim must be paid using available assets. If the estate lacks sufficient liquid assets, the Executor must sell assets to raise the necessary funds to pay creditors.
- Litigation – if anyone challenges the validity of the Will submitted to probate, the Executor must defend the Will throughout the ensuing litigation.
- Taxes – all estates are potentially subject to federal gift and estate taxes. Estates in the Commonwealth of Massachusetts may also be subject to Massachusetts estate taxes. All applicable tax returns must be completed and submitted and all tax obligations paid out of available estate funds before the probate process can conclude.
- Beneficiaries – finally, at the end of the probate process, the Executor must prepare all necessary legal documents and take all necessary steps to effectuate the transfer of the remaining property to the intended beneficiaries and/or heirs of the estate.
Contact Andover Estate Planning Lawyers
For more information, please download out FREE estate planning worksheet. If you have additional questions or concerns about the role of Executor, or you need assistance fulfilling your role as Executor, contact the experienced Andover estate planning lawyers at DeBruyckere Law Offices by calling (603) 894-4141 or (978) 969-0331 to schedule an appointment.
Daniel DeBruyckere
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