So, you’ve been named someone’s Executor in their will. Now what? The answer to this question can be broken into two separate phases: pre death and post death (to put it bluntly). It’s important to note that you don’t have to be an Executor, even if you’ve been named. However, if you choose to undertake this duty, it’s best to know what to do next. Here are your immediate first steps.
Phase 1 is easy. You have been named an Executor in the last will and testament of someone who trusts you. The person that named you (the Testator) is thankfully still alive. So, there’s not much to do. This is because the will doesn’t really come into play until the death of the testator. That being said, there are a couple things you need to know.
You need to know the location of the original copy of the will. To probate a will, you must have the original version. And, while it’s possible to probate a copy, it’s a huge headache. Thus, you should ensure that the Testator keeps the original in a safe place that you have access to.
You should know which items, generally, are passing through probate. A will means probate. Thus, only assets that pass-through probate are controlled by the will. Because of this, you should have a general idea of the assets, owned by the Testator, that will pass outside of probate. These assets may be ones that have been placed in trust or assets that have a beneficiary designated or right of survivorship. Either way, knowing which assets you actually need to worry about will save you a lot of time and energy.
You should know what the will says. Wills are legal documents with terms of art that can be confusing. Furthermore, some of the provisions in the will may not apply. To determine the proper plan going forward, you should seek legal counsel to ensure you understand how the law governs the process you’re entering.
You should know who the heirs are. Similar to the terms of the will, the heirs at law may not be ready ascertainable by simply reading the will. Your duty as the Executor is, primarily, to determine who the heirs are and what they get. Therefore, this is another area where you should seek legal counsel. You want to make sure that you’re getting this part correct. Otherwise, you could face liability.
Lastly, your first step with the court system will be to file the original will and apply to be the Executor—even though you’ve been named, you must be approved by the court. At this point, the estate is open, the probate process has begun, and your duties as Executor commence.
If you or your loved one has questions we would be glad to extend a FREE CONSULT to answer those estate planning and elder law questions and get your affairs in order. Let the experienced attorneys at McIntyre Elder Law help. Call (704) 259-7040.
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Brenton S. Begley
Elder Law Attorney
McIntyre Elder Law
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