Whether you have been named the executor of a will or a trustee of an estate, you have just been appointed a major role. This rule comes with strict guidelines and expectations that you must follow as a fiduciary duty. Failing to follow these duties could not only result in you being removed as the executor or trustee, but you may also face a civil lawsuit, depending on the violation.
You most likely already knew that a family member or good friend named you as the executor or trustee. While you may feel honored to take this role, you now have taken on an exceptional number of responsibilities. Once that loved one passes away, you must take over duties of the estate so that it can be closed out by the court.
It is in your best interest to contact a local attorney for assistance with your role. An attorney can help go over all of the responsibilities that you must complete, help you stick with strict probate court deadlines, and even assist you with some of the various responsibilities so that you are not shouldering the entire burden.
Your Primary Job as an Executor or Trustee
As the personal representative, you will be responsible for settling the deceased’s final affairs.
Just some of those tasks that you will take on include:
Locating Property and Assets
Your first job will be to locate any property and assets in your loved one’s name. This can include bank accounts, retirement funds, real estate, and other possessions. If the deceased has set up a trust, all their assets and property should have been transferred into the trust already. In this case, your job becomes easier because all of their assets are already accounted for and assigned to the trust.
If there is no trust established, you will need to use any will and other documents to locate the deceased’s property. You must also include any jointly held property or properties that have a beneficiary designation. Assets with a beneficiary designation will not go through probate court and instead pass directly to the named beneficiary. A common example of an asset with a beneficiary designation is a retirement account and sometimes even a bank account. Property that is jointly owned would transfer to the joint owner automatically when the other owner passes away.
Any property or assets that you find that are titled in the deceased name would go through probate court if they did not transfer ownership over to a trust.
What Is Probate Court?
Probate court is the state’s oversight of a person’s possessions and ensuring that their last wishes are carried out per their will. The only time you would not have to deal with probate court is if you are a trustee of an estate. Trusts do not go through probate court so, instead, you would use the trust documents and follow any instructions in them for distributing assets.
Probate assets are those that must go through probate court. A person’s assets can go through probate court if they have a final will and even if they do not have a will.
Meeting with an Estate Attorney
One of the other tasks you will complete early on is obtaining documents you need to meet with an attorney. Some of the documents you need to obtain before your first meeting would include:
- Copies of the will
- Death certificate
- Funeral bills
- Documents for divorces
- Documents for any armed services
- Copies of any trust agreements
Opening the Estate
As the executor of a person’s estate, you will need to open the estate in probate court. To start, you will file the will with the county clerk along with a petition to probate the will and receive letters of testamentary. You will need the letters of testamentary to access bank accounts in the deceased person’s name.
Once you have opened the estate and created an inventory of assets, you will then open a checking account just for the estate. You must then start the claims process with all creditors and not only notify them of the death, but ensure any pending debts are paid.
You will also be required to file a final tax return for the estate. The tax return and paying creditors are done before any assets are distributed to beneficiaries of the deceased. You may need to obtain updated appraisals, especially if the last appraisals of the property are outdated.
During all these tasks, you will notify named beneficiaries of the estate about the pending probate process and any designations found in the will or designations in the trust.
Once all creditors have been paid and the taxes filed, you will be able to distribute the remaining assets to the named beneficiaries.
What If You Don’t Need Probate Court?
If there is a trust, you do not have to worry about going through probate court. While the process is easier, you still have numerous tasks that you must complete as the trustee. You must review all trust documents and notify beneficiaries named in the trust about their inheritance. Even with a trust, you will file a final tax return for the estate.
Should You Use an Attorney to Help with Your Role as an Executor or Trustee of an Estate?
While there are numerous guides available online, no one should attempt to handle their duties as a trustee or executor alone. Both roles have numerous tasks assigned to them. And if you already have a family or job, it is a lot to take on. Also, you would need to know which documents to file and where to file them. And, there are strict timelines you must follow as part of this job as well.
Having an attorney assist you with your job is one of the best decisions you could make. An attorney handles probate and trust on a weekly basis. They know what you must complete and when you must complete it. Furthermore, they are there to ensure you fulfill your duties in your role.
If you were named a trustee or executor and you need legal assistance, contact attorney, Andrew M. Lamkin. Schedule your free case evaluation by calling our offices, or contact Andrew M. Lamkin, P.C., online to learn more about our services.
Andrew Lamkin is principal in the law firm of Andrew M. Lamkin, P.C., where he focuses his practice in the areas of elder law, estate planning and special needs planning, including Wills and Trusts, Medicaid planning, estate administration and residential real estate transactions. He is admitted to practice law in New York and New Jersey.
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