For most people, the foundation of their estate plan is their Last Will and Testament. For some, a Will is the sum total of their estate plan; however, most people include additional estate planning documents in their estate plan as well. Whether you have a simple plan or a complex plan, it all starts with your Will. In fact, one of the most important decisions you will make in your estate plan is made in your Will – the appointment of an executor.
Unfortunately, people frequently breeze over the appointment of an executor when drafting and executing their Will. People typically appoint a spouse, parent or adult child without giving the appointment much thought. This cavalier attitude toward the appointment usually stems from the fact that people don’t actually realize what an executor does and how complicated, time-consuming, and challenging the job can be.
The individual you appoint as executor serves not only as the executor of your Will but as the executor of your entire estate in most cases. In other words, your executor does not simply read your Will to beneficiaries and walk away. Instead, your executor is typically in for months, even years, of work after your death.
When you die, the original copy of your Will must be located. Once that has been accomplished, the individual named as executor in the Will must immediately accomplish two important tasks – securing estate property and opening the probate of your estate. For all but the simplest estates and executor will typically retain the services of an estate planning attorney to assist during the probate process. Ultimately, however, probating the estate is the executor’s responsibility.
Your executor will need to locate, inventory, and value all of your estate property. If you owned real property, unusual or valuable personal property, and/or were an investor of any kind the job of valuing your property can be cumbersome.
The next phase of probate involves creditors of your estate. Your executor must provide legal notice to all unknown creditors that probate is underway. Claims against your estate may then be filed by those creditors. Your executor must review each claim and approve or deny the claim. If the claim is approved your executor must pay the claim from estate assets. Sometimes this involves selling estate assets to liquidate the assets.
In the event that a challenge to the estate is filed, such as a Will contest, your executor must defend the estate throughout the ensuing litigation. Finally, when all property has been accounted for, all claims against the estate handled, and all litigation concluded, your executor must prepare and file taxes relating to your estate. Once that has been completed, the remaining estate assets can be transferred to the intended beneficiaries.
As you can see, your executor has numerous and varied responsibilities throughout the probate process. An error during probate can cost your estate money – money that was intended for beneficiaries. For these reasons, be sure you use care when choosing your executor.
The Law Offices of Barton P. Levine is a member of the American Academy of Estate Planning Attorneys.