Executors’ main responsibility is to the beneficiaries, as stated in the will of the deceased, by carrying out their wishes. Executors may act jointly or singly, but they may not violate the terms of the will, neglect the estate, violate their fiduciary duty, act incompetently, engage in self-dealing, embezzlement, or any other misconduct.
Keywords: executor, probate, estate administration, pre-probate duties, legal obligations, fiduciary duty, responsibilities
Meta Description: Understanding the limitations and responsibilities of an executor before probate is crucial. This guide explores the pre-probate actions an executor can take, including securing assets, paying funeral expenses, and notifying beneficiaries.
The role of an executor is to manage the estate of a deceased individual, ensuring its proper distribution according to the terms of the will. However, certain actions are restricted until the executor receives legal authority through the probate process. This guide clarifies what an executor can do before probate is granted, highlighting their responsibilities and limitations.
Pre-Probate Actions an Executor Can Take:
While an executor’s authority is limited before probate, they can take certain actions to preserve the estate and initiate the probate process:
1. Secure Assets:
The executor should take steps to secure the deceased’s assets, including:
- Locating and safeguarding valuables: This may involve changing locks, moving valuables to a safe location, or obtaining insurance coverage.
- Collecting outstanding debts: The executor can collect debts owed to the estate, such as unpaid rent or loans.
- Canceling credit cards and subscriptions: Preventing further charges on the deceased’s accounts.
2. Pay Funeral Expenses:
The executor is responsible for paying reasonable funeral and burial expenses from the estate’s funds.
3. Notify Beneficiaries:
The executor should notify beneficiaries of the deceased’s passing and inform them about the probate process.
4. Gather Information:
The executor should gather essential information about the estate, including:
- Identifying assets and liabilities: This involves creating an inventory of the deceased’s property, bank accounts, investments, and debts.
- Locating the will: The original will is required to initiate the probate process.
- Contacting legal and financial professionals: This may include lawyers, accountants, and financial advisors to assist with the estate administration.
5. Take Inventory of the Estate:
The executor should create a detailed inventory of the estate’s assets, including:
- Real estate: Homes, land, and other properties.
- Personal property: Vehicles, furniture, jewelry, and other belongings.
- Financial assets: Bank accounts, investments, stocks, bonds, and retirement accounts.
- Digital assets: Online accounts, social media profiles, and cryptocurrency.
6. Obtain a Preliminary Valuation of Assets:
The executor should obtain a preliminary valuation of the estate’s assets to estimate its overall value.
7. File the Will with the Probate Court:
The executor is responsible for filing the deceased’s will with the probate court to initiate the probate process.
8. Apply for Letters of Administration:
If the deceased died without a will, the executor must apply for Letters of Administration from the probate court.
Actions an Executor Cannot Take Before Probate:
An executor cannot take certain actions before probate is granted, including:
- Distributing assets to beneficiaries: The executor cannot distribute any assets until the probate court grants them legal authority.
- Selling estate property: Selling estate property requires court approval before probate is granted.
- Paying debts other than funeral expenses: The executor cannot pay any debts other than funeral expenses without court approval.
- Making significant financial transactions: The executor should avoid making significant financial transactions on behalf of the estate before probate.
Understanding the limitations and responsibilities of an executor before probate is crucial. While their authority is restricted, they can take essential steps to secure the estate, notify beneficiaries, and initiate the probate process. By following these guidelines, executors can ensure a smooth and efficient estate administration.
Disclaimer:
This guide provides general information and should not be considered legal advice. It is essential to consult with an attorney for personalized guidance on estate administration and probate matters.
Can an executor act alone?
It is entirely acceptable for a will to name just one executor. When this happens, that executor can, of course, act alone. However, it can lead to some awkward circumstances. For example, when a trust is established in the will. Most trusts need two trustees, though this isn’t strictly required. If there isn’t a second executor, a second trustee must be appointed. If this happens, you will need to take legal advice.
Can one executor act without the other?
If a will names multiple executors, it is expected that each named executor will cooperate in the estate’s administration and submit a probate application.
Nonetheless, in the event that one or more executors decline to act or are unable to act (for example, because of illness), they may renounce their position by signing a Deed of Renunciation, which will remove them from the executorship. The remaining executor(s) may then petition for probate in their absence.
As an alternative, the executor(s) who are still alive may request probate with “power reserved” for the executor who is unable or unwilling to act. This gives probate to the surviving executor(s) without requiring a Deed of Renunciation, preserving the other executor’s right to act in the future if they so choose.
If an executor wants to step down from their role as executor after participating in the estate administration, things could get complicated. You should seek legal counsel on what to do if this occurs.
WHAT SHOULD AN EXECUTOR DO BEFORE AND DURING THE PROBATE PROCESS?
FAQ
How much power does an executor have?
What is the main duty of an executor?
What does an executor do in a probate case?
The executor needs to pay any debts owed by the estate. He or she needs to make sure that the estate has paid all taxes. After paying the debts and caring for the assets of the estate, the executor will oversee the distribution of the remaining estate assets to the beneficiaries. Can a property be put on the market before probate is granted?
Do executors need a grant of probate?
Before distributing money in a deceased person’s account, financial institutions generally require executors to obtain a Grant of Probate, which is a legal document confirming that the executor has the authority to administer the deceased person’s assets. However, obtaining a Grant of Probate can be a laborious undertaking.
What happens if a person is approved as executor?
If you’re approved as executor, the court will officially open the probate case and you will now be able to act on behalf of the deceased’s estate. Step 2: Give notice. You’ll need to mail a notice that the estate is in probate to all creditors, beneficiaries and heirs (as required by the court).
Who can serve as executor in a probate case?
Other times, the court may follow any rules in the probate code as to who may serve as executor. Under all circumstances, the court must approve the person to be the executor and give them letters testamentary to prove they have authority to act on behalf of the estate.