The Executor’s Role During Probate
When drafting a will, a crucial decision involves selecting the individual who will act as the executor of your estate. This person is the representative tasked with executing the instructions you provide in your will. Moreover, this person may have certain discretionary powers that you grant them in deciding the distribution of your assets. However, their authority is restricted. Let’s delve a bit deeper into the probate process and the executor’s role in this process:
About the Probate Process
When the person who made the will, known as the testator, passes away, probate will be opened. Probate is a court-supervised process where the testator’s will is confirmed and managed. The executor is responsible for starting and completing the probate process. The specifics of probate can vary by state. However, the general probate process typically unfolds like this:
- The death certificate is filed with the court.
- The testator’s will is submitted to the court and validated.
- A petition to initiate probate is filed.
- The court authorizes the executor to collect, assess, and oversee the testator’s assets.
- The executor contacts beneficiaries to inform them of probate.
- Inventories detailing the deceased’s assets, bills, debts, and taxes are presented to the court.
- Payment is made for the testator’s debts and taxes.
- All remaining assets are distributed to beneficiaries, and probate ends.
If someone dies without a will, which is called dying intestate, there is more extensive court participation. The court selects an executor, determines beneficiaries, and decides the distribution of the assets. In most cases, probate cannot be fully avoided. However, with proper estate planning, you can significantly reduce its duration and costs.
The Executor’s Role & Responsibilities During Probate
The executor of a will is responsible for managing and carrying out the deceased person’s wishes as outlined in the will. Their duties typically include:
- Initiating the probate process.
- Identifying and managing the property and assets.
- Settling outstanding debts, bills, and taxes.
- Notifying beneficiaries about their inheritance.
- Distributing the assets according to the will.
- Ensuring compliance with all legal requirements during probate.
- Maintaining accurate records of financial transactions and distribution of assets.
- Providing regular updates to the court regarding the progress of the probate proceedings.
- Closing the estate.
When the Executor’s Role Includes Discretion
The executor must faithfully execute the instructions in the testator’s will, and they cannot alter the will. Nevertheless, the executor can exercise discretion during the estate settlement in certain instances. This discretion may be granted explicitly by the testator or necessary in cases where the will is unclear. Anyone with a stake in the estate can legally challenge the executor. Still, if the executor acts in good faith and within their powers, the court may support their actions in cases of ambiguity.
A Nonjudicial Settlement Agreement
The executor and beneficiaries cannot alter a deceased person’s will. However, the beneficiaries can agree to change what they inherit from the estate. They do this via a nonjudicial settlement agreement, which is a document that allows beneficiaries to agree on asset distributions different from those specified in the will. This agreement is useful in various situations, such as reducing inheritance tax, balancing unequal distributions among family members, or settling disputes over asset distribution. Before signing such an agreement, beneficiaries should consult a probate attorney to understand the potential consequences.
Expert Legal Guidance Awaits
Probate-related issues may necessitate legal assistance. Executors, beneficiaries, or anyone perceiving unfair treatment in a will should consider consulting a probate attorney for guidance on interpreting and administering the will, understanding their rights, and potentially challenging the will in court. For legal assistance with wills or probate matters, contact Law Stein Anderson for a complimentary consultation.