If you recently lost a family member or close loved one you are undoubtedly dealing with the emotional impact of that loss. If you also found out that you were named as the Executor of the estate of the decedent you will also have to deal with the legal and practical repercussions of your loved one’s death. If you have never been the Executor of an estate before, you may be feeling a bit overwhelmed and unsure where to start. If you are wise you will retain the services of an experienced estate planning attorney to assist you during the probate of the estate. While an estate planning attorney can provide you with much needed legal advice and guidance, you will still ultimately be responsible for overseeing the administration of the estate. With that in mind, you may find it helpful to know some of the most common pitfalls of the probate process and how to avoid them.
What Is Probate?
When someone dies, the individual leaves behind an estate that is comprised of all the assets the decedent owned at the time of death, including both tangible and intangible assets as well as real and personal property. Each and every one of those assets must eventually be transferred to a new owner. In addition, if the decedent left behind any debts, those creditors must be given an opportunity to file claims against the estate before those assets are transferred. Any taxes owned by the decedent and/or the estate must also be paid before assets are distributed. Probate is the legal process that ensures all of these things happen in an orderly and legal fashion.
What Are the Duties and Responsibilities of the Executor?
An Executor is appointed by the decedent in his or her Last Will and Testament. The duties and responsibilities of an Executor are numerous and often complex. Although every estate is unique, some of the most common of those duties and responsibilities include:
- Opening probate by petitioning the appropriate court
- Identifying, locating and valuing all estate assets
- Securing and managing estate assets for the duration of the probate process
- Identifying and locating beneficiaries and heirs of the estate
- Notifying creditors of the estate
- Reviewing and approving/denying creditor claims
- Paying creditor claims
- Selling estate assets if the estate lacks sufficient liquid funds to pay creditor claims
- Defending the estate against challenges, such as a Will contest
- Preparing and paying all taxes owed by the decedent and/or the estate
- Preparing all documents necessary to transfer the remaining assets to the intended beneficiaries and/or heirs of the estate
Common Pitfalls
If you are the Executor of an estate you want to avoid making mistakes because mistakes could cost both you personally, and the estate, both time and money. Some of the most common pitfalls to watch out for include:
- Failing to hiring an attorney – unless the estate is small enough to qualify for an alternative to formal probate it is highly recommended that an Executor retain the services of an experienced estate planning attorney. By doing so, you dramatically reduce the likelihood that you will make any of the other common mistakes Executor’s make.
- Failing to obtain professional appraisals – a date of death value must be obtained for all estate assets. For valuable assets this should be done by a professional appraiser to ensure that you have an accurate value.
- Failing to properly notify creditors – creditors of the estate have a right to file claims against the estate within a statutory period of time. If you fail to file the proper procedures for notifying those creditors, however, they could come back later and file a claim after the estate assets have been distributed, creating a very big problem.
- Failing to secure assets – you are responsible for securing all estate assets as soon after being notified of the decedent’s death as possible. If you fail to do that you could diminish the value of assets or lose them altogether.
- Failing to obtain fair market value for assets – sometimes it is necessary to sell estate assets to satisfy creditor claims or create an equal distribution for beneficiaries. Using a professional to appraise and sell the assets ensures you will receive top dollar for them.
If you have additional questions or concerns regarding the probate process please join us for one of our free estate planning seminars, or contact the experienced New York estate planning attorneys at The Law Offices of Kobrick & Moccia by calling 800-295-1917 to schedule your appointment.
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