Andrew J. Chamberlain Attorney at Law

Andrew J. Chamberlain recently joined Williams Caliri Miller & Otley, PC, as Of Counsel. Visit WCMO to learn more about the firm or stay on on this website to learn more about Andrew’s practice.

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What Is An Executor?

One of the first choices a Will’s author has to make is deciding who will serve as their Executor. An Executor, or Personal Representative, is a trusted individual who is responsible for fulfilling the provisions of the decedent’s will. With this great power comes a great responsibility to tie up the decedent’s loose ends such as paying outstanding debts, taxes and distributing assets to beneficiaries. Although the Executor is penciled in to the decedent’s Will, a judge still needs to confirm that choice before the Executor can perform their duties. If an individual does not have a Will when they pass away (also known as dying intestate), a judge will utilize state and local laws to choose an Executor for the deceased. 

If you were chosen to be the Executor of someone’s final wishes, you’re likely wondering what to do next. Most people in this situation are reeling from the loss of a close friend or family member and overwhelmed by unfamiliar legal procedures. However, they are determined to satisfy the decedent’s expectations correctly. We recommend seeking the help of an experienced probate attorney who can guide you through this complicated process in a timely manner. In order to point you in the right direction, we have illustrated a roadmap of an Executor’s first steps.

Read the Will

The first thing an Executor or Personal Representative should do is read the entire Will and any other estate planning documents. This informs the Executor of what is expected of them so they can follow the Will as closely as possible. The Executor should try to read the original version of the Will in order to ensure they are reading an unadulterated testament of the decedent’s wishes. The original is usually kept in a safe deposit box at a bank, in a safe at home or with the author’s estate planning attorney.

What Would the Decedent Do?

It is important to note that the primary role of an Executor is to perform the wishes of the Will’s author rather than satisfy their own preferences. This means the Executor must step into the mind of the decedent and make decisions based on what the decedent would have wanted rather than what the Executor thinks is best or would choose in a similar situation. This mindset applies to all the duties of an Executor or Personal Representative, including compiling an inventory of assets, paying debts and taxes, managing the estate’s assets, distributing assets to heirs and beneficiaries, closing the estate, ordering appraisals, communicating with creditors, liquidating assets and filing tax returns.

Organizing the Funeral

One of the first duties of an Executor is orchestrating funeral plans and procedures for the deceased. In fact, burials and cremation ceremonies are usually prepared by the Executor before their role as Executor is confirmed by the court. Remember, just because someone is nominated as an Executor in a Will does not mean the courts have to appoint that individual. However, a potential Executor is well within the bounds of the law when they carry out body and funeral arrangements as specified in the Will before being confirmed by the court.

Liability

It is important to keep in mind that you can be held liable for making a wide variety of genuine mistakes when administering the estate. These include making poor decisions which result in any loss to the estate, nonobservance of debts or failure to protect and insure assets among other things. If you are appointed as a co-Executor then you are jointly liable, which means you can be held liable for the errors of your co-Representative! For these reasons, we recommend newly appointed Executors contact an experienced probate attorney to counsel them throughout the process. An Executor can even hire an attorney to perform their duties for them.

We Can Help

Performing an Executor’s duties can be expensive, time consuming and stressful. Combine this emotional and financial toll with the possibility that you can be sued for even the most honest mistake, it is no wonder many Executor’s choose to rely on the expertise of a probate attorney.  If you’d like to consult with an experienced probate attorney, call us at 201-664-0540 or go to www.schedulefreeconsult.com. For more Trusts & Estates tips and tricks, go to AJC Law Insights

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