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Executors of a will have many responsibilities. An estate planning attorney can help them navigate the probate process and avoid legal missteps that could create personal liability.
An executor, also known as a personal representative, is responsible for managing and distributing the assets of a deceased person’s estate according to the terms of their will. Probate attorneys assist executors in navigating the legal process of settling that estate. This includes tasks such as inventorying assets, paying debts and taxes, and ultimately distributing remaining assets to beneficiaries.
A will executor is tasked with carrying out the deceased person’s wishes and managing their estate as outlined in the will. They have the obligation to act in the best interests of the estate and its beneficiaries while also following court procedures, meeting deadlines, and paying necessary debts and taxes.
Will executors keep detailed accounting records of every transaction made. This includes debts paid, assets sold, fees charged, and distributions made. There are fees associated with court filings and other necessary administrative work. These fees can be reimbursed from the estate, but many need to be paid upfront. For all of this work, executors are entitled to the compensation of 2% of the estate’s value, unless waived.
Executors can be held personally liable if they mismanage estate assets. They can also be removed by the court if beneficiaries petition the court or if the court finds them to be in breach of their fiduciary duty, incompetent, or not complying with court orders.
It’s a lot of responsibility. The will executor must follow the legal procedures of probate, from filing the will to distributing the assets.
With only a will, all estates must go through probate if the deceased person lived in Wisconsin when they died, the total value of probate assets is over $50,000. Even simple estates can take 6-12 months to go through the probate process. They can take even longer if the will is contested, if there are tax delays, or if there is a wait as property is being sold. The steps of informal, uncontested probate an executor must prepare for are as follows:
The first step is to notify heirs to get their signature on the Waiver and Consent document.
The next step is to file the will and petition for probate. This legally confirms the will and grants the executor the authority to act.
If not already done so, all heirs and beneficiaries must be notified. The executor must also publish a notice to creditors and provide them with the legally mandated three and a half months to file any claims against the estate.
All real estate, bank accounts, investments, and other assets must be identified and safeguarded. An inventory must be made, and significant assets, such as real estate or valuable jewelry collections, must be appraised or have their value otherwise assessed.
Before assets can be distributed, all valid debts need to be paid. The executor is also responsible for filing the final income tax return for the deceased, as well as any other required estate taxes.
Once expenses are paid, the remaining assets can be distributed to beneficiaries as directed in the will. Titles and ownership, for cars or real estate for instance, may need to be transferred.
Finally, closing documents need to be filed with the probate court. The court will review and approve the final accounting of the estate and discharge the executor of the will from their duties.
While all estates valued at more than $50,000 go through probate, there are different types of probate depending on the estate’s complexity and whether or not it is being challenged.
Informal probate is a simplified process with minimal court involvement. There are minimal, if any, court hearings, and most of the process is paperwork. Generally, the will is uncontested, meaning no one is challenging the will’s authenticity or terms. Informal probate is common when:
Formal probate involves active court supervision and may include one or more hearings. Often someone, likely an heir or beneficiary, is legally challenging the will. Judges often need to resolve disputes and more directly oversee actions like asset distribution. It is typically required when:
Informal probate is faster and less expensive than formal probate.
In a contested will, someone is claiming the will is invalid or unfair. The person who contests are often potential heirs or beneficiaries. A contested will means the estate will need to go through formal probate. Contested wills can extend the probate timeline by months or even years while disputes are settled.
Common grounds to contest a will include:
In an uncontested will, no one disputes the will’s validity or terms. This typically means the estate will go through informal probate, but not always. Even if no one challenges the will, it could go through formal probate if there are extenuating circumstances. That could include heirs that cannot be found or particularly complicated assets.
Being the executor of a will can be time consuming and stressful, not to mention individuals tasked with this responsibility are often also grieving the death of someone they loved. It’s common for executors to want the support of an attorney to ensure they are following the court process correctly. After all, most people only need to perform this duty once or a couple times in their lifetime, whereas estate planning attorneys have helped administer hundreds of estates.
Attorneys can help draft and file documents with the court. They can also provide guidance on other duties and instructions on how to accomplish necessary tasks. They also offer peace of mind to the executor, ensuring they are not missing any steps.
Estate planning attorneys can also help with settling debts with creditors, drafting or reviewing real estate documents or corporate documents if the estate includes a business.
For help navigating your responsibilities as the executor, contact the attorneys at Grieve Civil Law today.
