The legal process of probate can be very lengthy and time-consuming for an executor of a will, and there are likely more questions than answers that an executor may have about their new duties, especially initially.
When a person passes, their estate must go through probate. Probate is the official proving and recording of a will as the authentic and valid last will and testament of a deceased person. This is done in the Probate Division of the Circuit Court in the city or county in which the decedent lived at the time of their passing. An Executor is a person appointed under a will to administer the estate. An executor has many duties which they must fulfill, including:
- Gathering or collecting the property of the deceased person;
- Safeguarding the property;
- Prepare and file the inventory of the deceased’s assets;
- Collect any income and pay debts and expenses of the estate;
- Make important decisions regarding taxes and distributions, file all required final tax returns, make any required tax payments;
- Distribute the remaining assets to those entitled to them;
- Drafting and obtaining refunding bonds, receipts and releases as well as preparing and filing one or more accountings with the Commissioner of Accounts.
Being named, and acting as, an executor of a will (especially for a loved one) can be a tremendous responsibility. Unfortunately, there are also a number of usually unforeseen difficulties that can come with being an executor. Being prepared for those pitfalls, and knowing when an attorney can help, can make all the difference.
What Difficulties Might an Executor of a Will Face?
1) Disputes with Co- Executors
On occasion, co-executors of a will are named, usually a well-meaning parent doesn’t want to play favorites between their adult children. While the idea is noble and there can be benefits, this arrangement doesn’t always work out so well. The logistics of co-executors potentially residing in spread out locations add to the difficulty of the probate process. Hand-on things, like selling a home and securing assets are made even more complicated. Having co-executors also adds to the amount of paperwork needed and, in some instances, where a notarized original is required, a document will have to be shuffled around to multiple parties.
Beyond these practical issues is the very real consideration of human emotion. Having more than one executor means there is more than one decision maker. When emotions are already running high after the passing of a loved one, this creates a situation ripe for conflict. While there may be advantages to naming multiple executors, each situation is different and the decision as to how many executors should be named should be considered carefully.
2) Disputes with Heirs
An executor’s job is to secure the assets of the estate and then distribute them according to the deceased person’s wishes. It is true that heirs do not always agree with the wishes of the decedent that were set forth in their will, especially if a would-be heir is written out entirely. Unfortunately, these issues, if not addressed and resolved prior to the decedent’s passing, become the executor’s problem to deal with. This can create tensions within a family simply by the executor doing their job. While there’s not a lot an executor can do about the will, they can hire an attorney to diffuse tensions if the disputes get out of hand.
3) Time Commitment
Being an executor is a huge time commitment. There are many governmental agencies to deal with, a plethora of calls to make, numerous documents to sign, filings to accomplish, taxes to deal with. The sheer magnitude of what is required to settle an estate is, in and of itself, time consuming.
4) Conflicts of Interest
An executor is required to act in the best interests of the estate. On occasion, an executor may experience a conflict of interest such as being a co-signer for a loan or co-owning certain other assets. If a conflict of interest presents itself, it may be time for another executor to take over.
5) Lack of Knowledge
This one might seem obvious, but then again, you don’t know what you don’t know. This is true about not only the probate process itself, but of the assets of the decedent. If you are not particularly familiar with the deceased assets and liability, you may have an extremely difficult time locating a lot of the important paperwork needed – lengthening the probate process.
6) Out-of-Pocket Costs
An executor is generally allowed to receive a commission for the performance of their duties, the amount of which is usually determined by the size of the estate. With many smaller estates, the executor may be asked to waive any commission. There’s no way to avoid all out of pocket expenses involved in settling an estate because the executor cannot access the deceased person’s funds until the executor has qualified in Probate Court. However, expenses can be paid from an estate checking account or keep track of out of pocket expenses for reimbursement upon settlement.
If you’re serving as an executor and need assistance throughout the probate/estate administration process, or just advice from time to time, we can help make the experience less complicated for you and your family. Additionally, while we hope every estate runs smoothly, we are also available to help if you feel an estate is not being handled appropriately. Call us today at 888-691-9319 or fill out a quick form to get started.
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