If someone dies and puts you in charge of their estate in their will, you are their Executor or Personal Representative. There are three basic things Executors must do: 1) Protect the Estate by identifying and securing the property owned by the estate, 2) Probate the Will, which makes it legally effective. You can then begin to do things like sell assets and obtain tax clearance; and 3) Pay creditors and beneficiaries. Executors have certain fiduciary duties governing how they administer the estate. One of the foremost fiduciary duties required of an Executor is to put the estate’s beneficiaries’ interests first. This means you must notify them that they are a beneficiary.
As Executor, you should notify beneficiaries of the estate within three months after the Will has been filed in Probate Court. For beneficiaries of assets that are not included in the will (and therefore do not pass-through Probate) there are no specific notification requirements. For all items listed in the Will, however, that becomes a matter of public record once it is admitted to Probate. If you are the Executor, bear in mind if someone does not think they are getting all they are entitled to under the Will then they can go to the Probate Court where the Will is filed and review the document, make copies of it, and get their own attorney involved if necessary. You should consult with a family law attorney if you are unsure how to proceed as personal representative of an estate.
Some assets do not have to go through probate. Assets that do not have to go through the probate process are those that automatically pass to someone else at the testator’s death. Examples include life insurance, retirement and other financial accounts, and property owned “Jointly with Rights of Survivorship.” Assets that typically are considered part of the probate estate are bank accounts in the testator’s name, real estate owned by the testator, vehicles, furnishings, etc. A shorthand rule of thumb is, if it has a designated beneficiary assigned to it, the asset does not usually have to go through probate. If the asset does not have an assigned beneficiary, it usually does have to go through probate.
Beyond your fiduciary duty to put estate beneficiaries’ interests first, you also have an obligation to protect the estate’s assets, follow valid Will instructions, keep good financial records, be impartial and treat all beneficiaries fairly, and keep the estate’s assets separate from your own assets. Some things to avoid as an Executor are delegating your personal decision-making responsibilities, putting your interests ahead of the estate’s interests, failing to act prudently with investments, making a profit from the position (executor compensation is not-for-profit), and buying estate assets without express permission.
You will be more likely to attain and keep the trust of beneficiaries. If you do not wait for them to come to you. If you notify them as soon as you can once you identify all beneficiaries, they will see that you are being proactive and are taking your role as Executor seriously and ethically. Always be aware of the potential of real or perceived conflicts of interests. If it looks like you are unfairly gaining from your position as Executor or shortchanging a beneficiary in a way that could benefit you, it could lead to claims against you and greatly slow down the administration of the estate. An experienced probate attorney can help you through the process in Jefferson County or wherever you live.
Attorney Steven A. Harris regularly blogs in the areas of family law, bankruptcy, and real estate closings on this website. He is always available in any of the firm’s offices or by phone anytime for a consultation. Mr. Harris tries to provide informative information to the public in easily digestible formats. Hopefully you enjoyed this article and feel free to supply any feedback. We appreciate our readers and love to hear from you!