Many people who are named executor in a friend or loved one’s will haven’t served in such a role before and have little basis of knowledge as to what will be expected of them. Clients often ask, “what does the executor do?” or “what is my role as executor?” It can be an intimidating post and oftentimes there may be complex family dynamics that make it a little challenging, to say the least. This article is intended to be the first in a series of articles which will serve as a “primer” to those who may be called to serve or those who may already be serving as executor to an estate. Future articles in this 101 series will address management of assets, filing of inventories and accountings, and other related topics.*
What is the Executor’s Role?
The executor (sometimes also referred to as personal representative in Maryland and D.C.) is the point-person in charge of administering a decedent’s estate and winding up the decedent’s affairs after death. The executor is named in the decedent’s will. The executor is tasked with protecting a decedent’s property (the estate) until payment of outstanding debts and taxes are completed, and ensuring that the decedent’s remaining property is distributed to the appropriate beneficiaries. This job is an important one. It’s also one that can result in liability of an executor if it’s not taken seriously. An executor has a fiduciary duty to the estate. This means that an executor must put aside his or her own self-interest and act solely in the best interest of the estate.
Qualifying as Executor.
The first step to succeeding as an executor is qualifying. This should be done as soon after the decedent’s death as possible. It can be very difficult task because in most cases the executor is also very close with the deceased and are still grieving their loss. It can be challenging to wear both hats of a grieving spouse, child, loved one or friend, while also attending to the business-like nature of opening and administering a probate estate.
In order to qualify as executor, simply take the decedent’s original will and any additional codicils to the will to the probate office within the circuit court of the county or city of decedent’s last place of residence. A codicil is a separate document that amends a person’s will, rather than replacing it with an entirely new one. You can usually find the phone number for the probate clerk or probate office online. The clerk or office can also confirm you have the right jurisdiction for filing if you’re unsure. In most cases, you’ll need to make an appointment for probate of a will and the sooner you call the better. Busy jurisdictions can have long waiting periods to probate a will. Local jurisdictions as of late have been scheduling eight weeks out for new probate appointments. If there is no will, or you cannot find a will, the decedent is said to have died “intestate” or without a will and this is a slightly different process of qualification. This will not be addressed in this article. Your local probate office can assist you with qualification procedures in such cases.
Once you schedule your appointment with the probate office, you’ll need to contact a bondsman to identify any surety requirements (particularly if you’re an out of state resident serving as executor or administering an intestate estate). Bring the original will, a checkbook for any bond or surety requirements and your driver’s license or other valid ID to your appointment. If you are co-executor, meaning you are serving in the role with another individual(s), the other executors must attend the meeting with you.
The result of a successful appointment with the probate office is receiving letters of qualification. These name you as executor to the estate and serve as proof of your authority to act on behalf of the estate. You are now free to begin the process of winding up the estate.
What Else Happens at Probate?
In addition to qualifying as executor, you’ll often also complete and submit written notice of probate. Virginia’s notice requirement states that written notices shall be provided to certain parties (including, decedent’s spouse, all heirs at law, and all beneficiaries under the will). The notices inform the individuals receiving them that the decedent has died, that they are a legal heir or beneficiary to the decedent’s estate (not necessarily receiving any property under the will), and that you are now serving as executor to the decedent’s estate.
Notice further informs them of their right to copies of inventory and accountings of the estate. Notice is a critical step in the process and must be executed properly and within 30 days of qualification in Virginia (other state’s timeframes for notice may vary). Within four months of qualification, Virginia code requires that an affidavit of notice is filed with the clerk’s office to prove required notices were actually sent. If you have questions while serving as executor, always ask the probate office in the decedent’s city or town, and if they can’t answer a question, consult an estate planning attorney for guidance.
What Happens Next?
After qualifying as executor and completing the necessary notices, you’ll begin the work of taking inventory of the decedent’s assets and begin to carry out the various administrative tasks of being an executor.
* It’s important to note that standards and requirements for administering an estate (particularly the time frame for doing so) are state and locality specific. However, the overall process of administration tends to be similar in most jurisdictions. This article uses Virginia law as the basis for explaining the administrative process.