When you sit down to create your estate plan, you will have to make a number of important decisions. While many of those decisions will be directly related to the disposition of your estate assets after you are gone, one of the most important decisions will not be. That decision is your choice of Executor, appointed by you when you execute your Last Will and Testament. The probate lawyers at the Law Offices of Kobrick & Moccia stress the need to appoint the right Executor to ensure that the probate of your estate is accomplished effectively and efficiently when the time comes.
What Is Probate?
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. Probate can involve many complex legal and financial issues. If an Executor is not well versed in the law and/or the world of finance, he/she could make a costly mistake, resulting in both the loss of assets to the estate and unnecessary delays to beneficiaries of the estate. To avoid this outcome during the probate of your estate, take the time now to learn what your Executor’s duties and responsibilities will be and then appoint the right person to the position.
Duties and Responsibilities of an Executor
An Executor has a wide range of duties and responsibilities during the probate of an estate. Some of the most common of those include:
- Gathering estate planning documents. Your Executor may be grieving your loss; however, he/she must act quickly to prepare for the opening of probate. An original copy of the decedent’s Last Will and Testament must be located and certified copies of the decedent’s death certified ordered. Any additional estate planning documents should also be located and secured.
- Identifying, locating, and securing assets. As soon after the decedent’s death as possible, the Executor should start identifying and securing estate assets. A preliminary decision must also be made regarding what type of probate is required – formal or an alternative to formal for small estates.
- Categorizing and valuing assets. Eventually, the Executor must obtain a date of death value for all estate assets. Initially though, he/she must decide if they are probate or non-probate assets because some assets bypass the probate process entirely.
- Initiating probate. To open the probate of an estate the Executor must obtain a certified copy of the death certificate, a signed, original copy of the decedent’s Will, and a petition to open probate. By this point, most Executors have retained the services of an experienced estate planning attorney who will prepare the necessary petition.
- Litigating any challenges. If a Will contest is filed, the Executor is required to defend the Will submitted for probate throughout the litigation that will follow.
- Paying taxes. The Executor must determine if any state or federal gift and estate taxes are due from the estate and, if so, pay the tax debt out of estate assets.
- Distributing assets. Finally, the Executor must prepare any necessary legal documents to effectuate the transfer of the remaining estate assets to the intended beneficiaries.
Choosing the Right Executor
Although it may be tempting to just name a spouse or close friend as your Executor, consider the following questions to ensure that you appoint the right person for the job:
- 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?
- 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 Probate Lawyers
For more information, please download our FREE estate planning worksheet. If you have questions or concerns about appointing the right Executor, contact the probate lawyers at the Law Offices of Kobrick & Moccia by calling 800-295-1917 to schedule your appointment.