What are the do’s and don’ts of being an executor of a will?
If someone has named you as the Executor in their Last Will and Testament, what do you do when the Testator (person who made the Will) dies? Serving as an Executor can be a lot of work but arming yourself with some knowledge of the job can make it less intimidating.
Don’t assume you can begin distributing the estate as soon as the Testator dies. Just because you are the named Executor does not give you any authority to begin acting. The Will must be admitted to probate—the process by which a Will is proved to be valid and the process of administering a deceased person’s estate—and the court must appoint you to serve as Executor. You must be qualified to serve. For example, an Executor cannot be incapacitated, a convicted felon, or any person the court finds unsuitable.
Do your best to determine whether the Will is the last Will. Usually, a Will, especially one prepared by a lawyer, includes language that revokes all prior Wills. It’s important to search the home and other possible locations to make sure the one in possession is the most recent Will. Do make certain that the Will in your possession is the original document. These days it can sometimes be hard to tell the difference between an original and a copy. Even though it is possible to probate a copy, it is more difficult (and costly). The court makes the final determination that the Will is valid.
Do understand your general responsibilities. You will need to locate, collect, and secure the deceased person’s assets; pay expenses, debts, and taxes of the estate; and ultimately distribute the estate to the beneficiaries named in the Will. Do engage an attorney who has experience in probate. Your lawyer will file an application with the appropriate court, along with the original Will. If all goes as planned, at a hearing the judge will admit the Will to probate and appoint you as Executor.
Don’t create enemies where none exist. You are not obligated to notify Will beneficiaries when an application has been filed or even before you are appointed at the hearing. But in an uncontentious family or otherwise friendly situation, it is often wise to treat beneficiaries as you would want to be treated—frequent communication and transparency can go a long way in staving off problems down the road. And, within 60 days of being appointed by the court, you are required to notify beneficiaries, which generally includes providing a copy of the Will.
Do take your job seriously. You’ll take an oath to faithfully carry out your duties. As Executor, you are a fiduciary entrusted with duties on behalf of beneficiaries.
Don’t wait to get a handle on the estate’s assets and liabilities. By the time you’re appointed, you will want to have made a list of assets—home, mineral interests, other real estate, financial assets such as bank and brokerage accounts, retirement accounts, life insurance policies, personal effects such as vehicles, guns, jewelry, artwork, and furniture, and more.
Do keep meticulous records and an account of estate property. You will open at least one estate bank account for collecting liquid assets and paying the estate’s bills. Never mingle your personal funds with the estate’s funds.
This is a broad overview of the probate process. There are other requirements such as notifying creditors and preparing an inventory of estate assets, and many other considerations regarding specific assets, paying taxes and expenses, and distributing to beneficiaries.
Finally, do feel honored that your friend or family member trusted you to carry out their wishes in this important role.
You may visit our website at www.wrightabshire.com. Thank you to Wright Abshire associate attorney Theresa A. Clarke who contributed to the article. Wesley E. Wright and Molly Dear Abshire are attorneys with the firm Wright Abshire, Attorneys, P.C., with offices in Bellaire, the Woodlands, and Carmine. Both are Board Certified by the Texas Board of Legal Specialization in Estate Planning and Probate Law and are certified as Elder Law Attorneys by the National Elder Law Foundation. Nothing contained in this publication should be considered as the rendering of legal advice to any person’s specific case but should be considered general information.