Whenever someone does an excellent job drafting a
will, he or she will nominate at least one executor to handle their estate
when they pass away. Sometimes, they will name one particular person,
and they’ll provide for a second person to fill that person’s
shoes if they are unable or do not want the job. Usually, the executor
is a spouse, an adult son or daughter, or a close friend of the family.
Typically, what happens is the attorney will be writing the will for their
client and he or she will say to the client, “Please name someone
that you trust to handle your affairs after you’re gone.”
Most people will name a close family member, but if they don’t trust
their relatives, they’ll name a close friend instead; someone with
a level head. Occasionally, the creator of the will fails to tell their
trusted friend or family member that they named him or her as the executor
of their estate.
Were You Named the Executor?
If someone you love recently passed away and you discovered that he or
she named you as the executor of their estate, it may be a bit of a shocker,
but he or she trusted you enough to handle their most personal affairs
after they’re gone. That says a lot about you.
Administering an estate is not an “easy” task. You will have a
fiduciary duty to act in the best interests of the beneficiaries and you cannot co-mingle
the estate’s assets with yours. Depending on the size of the estate,
you may need to manage investments, sell or rent out real estate, and
have valuable collections appraised and liquidated.
You will also need to file tax returns and pay the decedent’s debts.
In many ways, being an executor is a thankless job, so it’s not
unusual for people to be uneasy about taking on such an important job.
Others are honored to take on the role of executor and are more than happy
to carry out the decedent’s final wishes.
Can I Handle Probate Alone?
In a word – no. Probate is a complicated process and should not be
handled alone. If you decide to accept the role of executor, you will
have legal obligations toward creditors, the state and the IRS, the courts
and of course, the heirs. If you fail to meet any of your obligations,
you can face estate litigation, a will contest, or another legal issue,
which you could put you on the hook financially. Professional assistance
from an experienced probate attorney is critical to navigate the unknown
waters of probate.
Even though you’re the executor of the estate, you’ll still
have to answer to the court. Many people mistakenly believe as soon as
the decedent passes away, they have legal authority to act, but that’s
not the case. They do not have legal authority until the probate court
appoints them as the executor of the will. While the executor waits to
be appointed, he or she may need to do other things, such as collect the
mail, lock up the decedent’s home and find appropriate homes for
any pets the decedent may have had.
If the decedent appointed you as the executor, remember that you’re
not officially the executor until the court says so. Often,
probate litigation is commenced at this point because the nominated executor begins to take
control of the situation (e.g. locking the family out of the home, collecting
the mail, etc.). You need to move forward, but be thoughtful of your actions
and do it responsibly.
As the executor, also known as the “personal representative”
of the estate, once you file the original will with the County Clerk’s
Office and you’re appointed by the court, you’ll be responsible
for the assets that go through
probate. For professional legal assistance through the Tennessee probate process,
contact my firm to set up a
free case evaluation!