There can be overwhelming grief and pain at the loss of a loved one. However, one of the greatest things that we can do to honor the memory of a loved one is to ensure that their final wishes are completed.
The fundamental duties of a personal representative (also known as an "executor," if male, or an "executrix," if female) of an estate are the same as those of a trustee of a trust - gathering the deceased’s assets, paying creditors and protecting the assets and interests of the beneficiaries. One way to protect those assets and interests and, at the same time, help the probate process go smoothly, is to be prepared.
Read on for some essential points about the probate process and how representatives can assist with the process.
Generally speaking, after the court has opened the probate proceeding and appointed a personal representative, that personal representative is required to prepare and file an inventory. The timeframe for this important chore is set by statute. This inventory should detail all of the assets subject to probate (i.e., that did not pass outside of probate by operation of law or otherwise). The property must be valued and even appraised as necessary.
Unlike the Hollywood movie, the will is not usually “read”, and certainly not at the funeral! Moreover, even in the best of circumstances, the gifts and bequests are not distributed for some time after death. While one may be entitled to an inheritance, the inheritance is subject to the estate's administration. The representative must settle the decedent's debts and claims before he or she can make any distribution of the assets. So, beneficiaries, do not go to Grandma's house with a moving truck and start taking whatever you want. Most likely, the representative is doing his or her job and making sure everything stays where it is until probate is closed.
As noted above, the representative also must to keep the administration process moving along by settling all of the decedent's debts. He or she must give proper notices to creditors, publish said notice.
The representative must keep the beneficiaries in the loop, to include providing each with notice via certified mail that the will has been admitted to probate and a copy of the will. In addition, the representative must inform the beneficiaries regarding any information that might affect their rights. For instance, beneficiaries have the right to ask for an accounting.
The representative is responsible for the care and maintenance of estate property, treating it with even greater care than his or her own property. The representative may sell any property that is perishable or would deteriorate in value during the probate process.
As you can see, being a representative is a weighty responsibility. Consequently, he or she can be removed if proven to have been responsible for gross misconduct or mismanagement in the role of representative. The representative also may be subject to a suit for breach of fiduciary duty. Along the way, there are taxes to be paid and returns to be filed, along with a many other details.
So you see, there is more than a little pressure on the personal representative. As a result, it is essential that the representative work in concert with John Burns, an experienced probate estate planning attorney to guide the representative or beneficiaries during this process … and avoid all of the hidden landmines.