Being named an Executor in a Will can seem like quite a daunting task after that person has passed away. While many of us have heard the term executor, we often do not know where to start or what exactly we need to do!
The process of settling an estate should be thought of more as a marathon than a sprint. Except for small estates (less than $20,000 or $30,000, depending upon the nature of the estate), it usually takes six to twelve months to properly administer an estate. Any disputes that arise during the administration of the estate can delay estate administration, also often referred to as probate, significantly (sometimes years).
Here are some steps to help get you started if you have been named an Executor:
1. Locate The Estate Planning Documents
If you believe you have been named executor, but you are not completely sure, it is important to locate the person’s estate planning documents to ensure that you are named as their preferred Executor. You will also need to locate the estate planning documents to prepare for their submission to the court.
2. Preserve Assets And Keep Accounts Open
Your main job as Executor is to ensure that the decedent’s wishes expressed in the Will are followed, and to best do that, we need to preserve any existing assets and keep any current accounts open. This ensures that everything remains as it was when the person died and that no one is acting with authority they don’t have!
Even if the Will states that Grandma Ann wanted her diamond ring to go to grandson Joe to use to propose to his longtime girlfriend, any distributions cannot take place until you have been legally appointed by the court as Executor. Just being named Executor in the Will does not automatically make you the Executor in the eyes of the court! Step 4 covers this in more detail.
3. Begin Gathering Important Documents
In addition to the decedent’s estate planning documents, you will need to locate other important documents like a checkbook (if they have one), bank statements, credit card statements, business documents, deeds, automobile titles, life insurance policies, retirement account statements, tax returns, and other important documents.
You will want to consider meeting with and retaining a law firm to guide you through the estate administration process if you haven’t already hired a lawyer to assist you. While being named as an Executor is an honor, it also comes with a significant amount of personal liability. An Executor is held personally liable if they do not handle the estate correctly. Exercising due diligence and hiring a reputable law firm to assist you limits your liability exposure.
4. Open The Estate With The Court
The next step is to execute and file the appropriate legal documents and/or court filings to become legally recognized as the Executor of the estate. Prior to being legally recognized as Executor, you do not yet have the legal authority to act on behalf of the estate or to sign documents on behalf of the Estate.
For an estate without a Last Will and Testament, you would petition the court to be appointed as Administrator of the estate. From a practical perspective, an “Administrator” is more or less the same as an “Executor.” It is merely a subtle legal distinction that reflects that this is an estate without a Last Will and Testament that formally nominates an Executor. For an estate with a Last Will and Testament, you would petition the court to be recognized as Executor.
The term “Personal Representative” is sometimes used as a more general term to encompass either Administrator or Executor. For this guide, we’ll generally use the term “Executor” to generically refer to an Administrator, Executor, or Personal Representative, as Executor is the term people are most familiar with.
When petitioning the Court for an appointment, there are additional supporting actions that may be required, such as the taking of an oath, formal resignation by others named as Executor who does not wish to serve, and possibly posting a bond insuring the estate against inappropriate actions on your part as Executor.
If there is a Last Will and Testament, it must be submitted to the court for probate. Technically the term “Probate” means “to prove the Will”—meaning that the court accepts and approves the Will as meeting the basic legal requirements. Following the “Probate” of the Will comes estate administration—the actual handling of the estate and claims against the estate. Generally, people refer to this entire combined process as “Probate.”
The court will issue formal documents recognizing you as either Administrator or Executor of the Estate: Letters of Administration if there is not a Will; Letters of Testamentary if there is a Will.
5. Be Patient
You probably will not be surprised to find out that with a court process like estate administration, there can be a lot of waiting! In Wake County, it can sometimes take up to 6 weeks just to have the estate opened.
There will then be more periods of waiting as you wait for forms to be processed by places like the bank and credit card companies. These periods of waiting make up a big part of why the estate administration process can often last anywhere from six months to a year.
How can I get help with this process?
If the idea of being named and appointed an Executor sounds like a lot of work to you but you still want to be the Executor, there are options! As mentioned above, you can retain the assistance of a law firm that offers probate and estate administration services. These fees are allowed to be taken out of the estate itself, rather than your bank account.
At Carolina Family Estate Planning we provide a full-service approach to probate the probate process that minimizes headaches, transfers assets as quickly as possible, and ensures the right choices are made at every crossroads. Plus, all legal requirements are satisfied within the legal deadlines. All of this is done with love and compassion during a difficult time. If you need help and guidance navigating the probate of a loved one’s estate in North Carolina, call us at (919) 443-3035 or visit our website to schedule a free needs assessment call with one of our friendly client welcome specialists.