Preserving your wishes for your estate and legacy
You’ve worked hard to build a legacy you can pass down to your loved ones and to future generations. Yet the guidance you’ve offered in your will and other estate planning documents isn’t carried out automatically.
Instead, the responsibility of distributing your assets and carrying out your last wishes will fall to an executor named in your will.
Probate comes at an emotionally challenging time for many people, and it can also be legally complex. One of the greatest challenges in settling an estate is the immense responsibility that comes with being named an executor.
Your loved ones may want to play an active role in helping to distribute your assets. However, serving as an executor can be stressful, complex, and time-intensive—and if they don’t have prior legal experience dealing with probate, the process can feel overwhelming.
At Goldberg Law Group, we recognize that not every case requires an attorney. After a simple phone call, we’ll assess whether or not you should engage a professional. If you decide that you’d like to enlist executor services, we’re here to help.
Our team is focused on helping our clients preserve their legacy by working to ensure their wishes are carried out during the probate process.
Navigating probate and estate administration
When planning your estate, you’re thinking about how to distribute your assets—but you’re also thinking about what your loved ones will need to do to settle your estate. In short, you’re thinking about estate administration.
Estate administration, also known as probate, is the legal process that allows a named executor to settle the affairs and carry out the wishes of someone who has passed away. Although the Last Will and Testament of the deceased may clearly state how they would like their assets to be distributed, this process doesn’t begin automatically.
Instead, the Surrogate will appoint someone to serve as either the executor of the estate (named in the Last Will) or as the estate administrator. This person has direct responsibility for managing the affairs of the estate, under the supervision of the Surrogate.
Make settling your estate easier for your beneficiaries by naming an executor
Ideally, your family members and loved ones will work together to distribute your estate according to your wishes. However, settling an estate is a complex and sometimes emotional process. Identifying an executor streamlines the process and reduces conflict and stress among beneficiaries.
Responsibilities of an executor
An executor is a person or institution appointed by the testator (the person who created the will) to carry out the terms of a Last Will and Testament. An executor is responsible for managing the estate assets, settling the estate, and managing trusts that belong to the estate.
One of the primary responsibilities of an executor is to identify and marshal all known assets of the estate, including real estate and any life insurance policies where the estate is the beneficiary.
An executor will also:
- Gather all of the decedent’s known debts and expenses
- Identity any estate, inheritance, or federal taxes that are due
- Determine if an income tax return needs to be filed
- Hire professionals such as accountants, real estate attorneys, and real estate agents where necessary
Settling the estate
Once all assets and debts of an estate have been marshaled and identified, the executor will settle the estate by:
- Opening an estate account and depositing marshaled assets
- Completing any beneficiary claim forms
- Distributing assets to beneficiaries as outlined in the decedent’s will
- Paying all known debts
- Arranging for all taxes to be prepared, filed, and paid
- Obtaining tax waivers when necessary
An experienced executor will also confirm the value of the estate and determine how assets that are not specifically addressed in the Last Will and Testament will be divided and distributed.
There may also be a number of non-probate assets included in your estate, particularly if you’ve chosen to establish one or more trusts as part of a comprehensive estate plan.
Trusts are useful estate planning tools for a number of reasons. Among other things, a well-structured trust can:
- Allow your family more privacy by shielding certain assets from probate, which is a public process
- Protect your assets from creditors
- Allow you to exercise more control over how and when your assets are distributed to beneficiaries
Since the assets contained in a trust are not included in the probate process, the executor of your estate won’t be able to marshal or distribute these assets unless they’ve also been named trustee of the trust.
Selecting an executor for your estate
Any person who is at least eighteen years of age may serve as the executor of an estate, so long as they:
- Are a U.S. resident
- Have been named as executor in the Last Will and Testament
- Have not been judged to be “incapacitated” by a court
Depending on where you live, additional requirements may also apply. For example, in many states, the probate court cannot appoint an executor who has previously been convicted of a felony.
You should carefully consider your options before choosing your executor. The person you most trust or favor may not always have the legal experience to properly guide your estate through the probate process.
How an executor is appointed
While you can name an executor in your estate planning documents, this alone doesn’t grant them any legal authority to undertake any actions for your estate.
For an executor to have legal authority, they must be legally appointed as an executor during the probate process.
What executors should expect during probate
Before an executor can be appointed, the Last Will and Testament of the decedent must be probated in the probate court (also known as the surrogate court) in the county where the decedent last resided.
A Last Will and Testament cannot be probated until ten days after the death of the decedent. Although it’s possible to start the process with the probate court within those ten days, the court will not admit the will to probate until ten days have passed.
The following documentation must be provided to the probate court before the probate process can begin and an executor can be appointed:
- An original, self-proving Last Will and Testament
- An original Death Certificate
- The full names and current addresses of all next of kin of the decedent, including those who aren’t named as beneficiaries in the Last Will and Testament
- A check or money order for the probate fee (this is typically between $100 and $300)
After the will has been probated and an executor has been appointed, the executor will have the official authority to manage the affairs of the estate.
Executor or estate administrator? What’s the difference?
We know well how complex estate planning can be. Confusion often arises surrounding the terminology that’s used to refer to roles and responsibilities, like “executor” and “estate administrator.”
How do the two differ?
An executor and an estate administrator serve a similar role during the probate process, but they differ in the way they’re appointed by the probate court.
To be appointed as an executor, an individual or institution must be explicitly named executor in the decedent’s Last Will and Testament.
By contrast, an estate administrator is appointed by the Surrogate in cases where there is no named executor, either because there is no will, the will hasn’t specifically named one, or the named executor is unwilling or unable to serve. In most cases, the role of administrator will fall to a surviving spouse or the decedent’s closest living relative.
When planning your estate, it’s a good idea to explicitly name an executor in your Last Will and Testament. Otherwise, you’ll have little control over who is responsible for settling your estate, and the burden is likely to fall on a loved one who may not be prepared to handle this responsibility.
Work with Our Experienced Estate Executors
The knowledgeable attorneys at Goldberg Law Group have years of experience serving as executors and carrying out clients’ wishes as expressed in their wills.
If you have further questions about the role of an executor or want to know whether professional executor services might be right for your circumstances, contact us today for a free consultation.