Under ideal circumstances, you will know well ahead of time if someone plans to nominate you to be the executor in a Last Will and Testament. Of course we all know that life doesn’t always present us with ideal circumstances. If you have recently been notified that someone died and nominated you to be the executor of the estate in his or her Will, you may be wondering what to do next.
To begin with, you need to know that you are not required to accept the position of executor. You are free to explain that while you appreciate the confidence the decedent had in you, you do not feel you are in a position to accept the position.
You should also know that being identified as the executor of a Will does not automatically empower you to act. In smaller estates you may not have to go to court, but generally, you will not have any significant powers until at least 4o days after death. Then you will typically need to have a specially prepared Affidavit to gather assets.
In larger estates (typically $150,000 and up), you will first need lodge the Will with the court and to petition the probate court to be appointed as the executor. Once approved by the court, you will be issued Letters Testamentary which will give you legal authority to handle the decedent’s affairs.
In general, once the court has appointed you, there are a few important things that need to be done as soon as possible. Securing the estate assets is at the top of the list. They will eventually be inventoried and valued; however, for now you need to secure them to the best of your ability.
In acting as an executor, you are held to the standard of a fiduciary which imposes a duty on you to act in the interests of the decedent’s estate and the beneficiaries. Failing to meet your fiduciary duties could expose you to liability to the beneficiaries and even to creditors of the estate.
The position of executor can be difficult and time consuming. Once you decide to accept the appointment, you should seek help from an experienced and qualified probate attorney. The attorney’s fees will be paid for out of the estate assets, not out of your pocket. You, too, are entitled to a fee as the executor of an estate, but, like the attorney’s fee, it is subject to court approval.
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