Executors — Steps Prior to Opening the Estate
The terms “executor,” “administrator,” and ” personal representative” are all synonyms for someone who is legally responsible for managing the estate of a person who has died. The position of executor may be filled by a specific person named in the decedent’s will or, if the decedent did not make a will, by someone whose relationship with the decedent makes him the legally responsible party (i.e., parent or spouse). The position can be refused.
If you agree to be someone’s executor, your work begins when that person dies. Your initial step is to determine whether the decedent made a will. One place to check is the probate court of the county where the decedent lived. Another place is with the decedent’s lawyer. Of course, a will may be located in the decedent’s home or safe deposit box. A will should be located and read without delay because it may contain provisions about the decedent’s funeral or burial wishes.
In most cases, the decedent’s family members will take care of funeral and burial arrangements. Keep in mind that the arrangements may be your duty if the decedent has no surviving family. Although each state has laws specifying the sequence of people that have the right to decide about details of the ritual service and the disposal of the decedent’s body, such laws are rarely enforced due to time constraints.
Even if someone else makes the arrangements, you, as executor, should be aware of them because all reasonable funeral expenses are chargeable against the decedent’s estate. Be aware that state laws give funeral directors priority over other creditors. This means that the funeral director’s bill must be completely paid before other debts (except for administrative costs and taxes). Thus, you should look over the bill carefully and closely examine any questionable items.
Your most important preliminary duty is to find out what property makes up the decedent’s estate and who are the parties that can claim it. Basically, you should identify any competing interests and anyone that can hold you accountable. Interests stem from four major areas:
- Joint-property ownership — including tenancy by the entirety and joint tenancy
- Intestate-share laws — covering decedents who die without a will
- Elective rights — for surviving spouses that are not satisfied with what the decedent left in the will
- Automatic-share laws — giving surviving spouses the right to take part of the decedent’s estate free of other claims
Lastly, you should take a legal audit of the estate. This will help you organize all of the information that you need to perform your duties. The audit should include facts on the decedent’s ownership of real and personal property, on the decedent’s marriages and children, and on the decedent’s will.
Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.