Your father recently passed away, and you’ve learned that your sister has been named executor of his estate. Where does that leave you?
If you’ve lived through the death of someone close to you, you understand how complicated estate-related questions can become.
Just as an individual can’t own property or act in a legal capacity after his or her death, anyone acting under a power of attorney for such individual no longer has the authority to manage assets or make any decisions. One mechanism that is available to settle the inevitable questions of debt repayment and the transfer of assets is commonly referred to as “probate.” Probate is a legal process overseen by the state’s probate court, and each estate is assigned a person to act as executor. An executor is responsible for handling the details of administering the estate and is usually named by the deceased in a will, or an executor may be assigned by the probate court upon the filing of a petition. If someone dies without a will, and thus without naming an executor, the individual who handles the estate often is called an “administrator” – the roles of an executor and an administrator are identical.
Individuals who are named as executor and other family members often have questions about the probate process and next steps. Here are some common questions:
I’ve been named an executor. What does that mean? You are the person who is expressly named to make sure the wishes of the deceased individual, as stated in a will, are carried out and the estate is properly administered.
Do I have to be the executor if named? In short, no. The deceased was stating a preference, but you cannot be forced to do the work. If you decide to decline, the probate court will appoint someone else to serve as executor, whether another person named in the will, or an outside individual.
Why was my sibling named executor? Many factors typically go into the decision as to who to name as executor. Executor duties can be time-consuming, can last months or even years, and often require considerable effort, so an individual should be nominating people who can fulfill those duties. An executor serves as a fiduciary, and is required to always act in the best interests of the entire estate. An executor has no greater entitlement to the estate above and beyond what is written in the will. Whoever is named executor should be able to work cooperatively with all family members to ensure everything is properly handled and that everyone is kept informed.
What does the executor do? The executor handles all details of managing the estate, including submitting the will to the court, attending applicable hearings, locating and inventorying assets, maintaining those assets from the estate, paying debts and any estate taxes, selling assets (such as a home), etc. Every action the executor undertakes is under the oversight of the probate court. Exact duties vary greatly depending on factors such as the condition of the estate, how assets are held, whether there was a valid will, etc.
Can the executor get paid? In general, the answer is “yes.” Compensation can be based upon time expended, a flat fee or a percentage of the estate, depending on the size and complexity, although not all of these options are allowed in every state. In New Hampshire, any fees that are paid to an executor or administrator from the estate are subject to approval by the court.
If you have specific questions or want to know more about the probate process, please get in touch.