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Guiding Your Executor: Navigating the Probate Process and Exploring Options

When you’ve taken the crucial step of drafting a Will, it’s equally vital to prepare your chosen executor for what lies ahead. Informing them ahead of time ensures a smoother process during what can be a challenging period.
October 2, 2023
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When you’ve taken the crucial step of drafting a Will, it’s equally vital to prepare your chosen executor for what lies ahead. Informing them ahead of time ensures a smoother process during what can be a challenging period. Here’s a guide you can use to brief your executor on their responsibilities and the nuances of probate, along with a mention of other estate planning tools that are worth considering.

Assets Subject to Probate:  Begin by explaining that assets titled solely in your name without a designated beneficiary will be governed by the terms of your Last Will and Testament. These assets are considered part of your “probate estate.” This means they will go through a legal procedure called probate before distribution.

Assets NOT Subject to Probate:  Remind your executor that certain assets, including those jointly owned or with designated beneficiaries, transfer directly upon your death without probate. Examples include jointly owned bank accounts, retirement and investment accounts, and life insurance (again, to the extent you have named beneficiaries on these accounts). Real estate that is jointly owned with a right of survivorship similarly passes automatically to the living joint owners without having to go through probate before the assets can be distributed to the named beneficiaries.

Starting the Probate Journey: Your executor’s initial task is filing a probate petition with the Surrogate’s Court. It is necessary to be officially appointed by the Court before being allowed to distribute the property left by the decedent. This process involves presenting the Petition, original Will and a certified copy of the death certificate. When there’s only one heir or the closest relatives are not the spouse and children, a family tree affidavit needs to be submitted. This is a notarized document attesting to the decedent’s family history, completed by an independent party.

Engaging Family and Relatives: The executor will then notify your next-of-kin and those who are to inherit under the Will. They can either sign waivers and consents or be issued a citation to appear in court.

Potential Challenges: If everyone consents to the admission of the Will, then jurisdiction is said to be complete. The Surrogate’s Court will issue a decree granting probate and issue Letters Testamentary to the Executor.

If anyone objects to the Will being admitted to probate, the length and costs of probate multiply exponentially. Any distributee has the right to examine the Will and other documents and then take depositions of the drafting attorney and all witnesses to the Will execution. These depositions are expensive and the estate must cover the costs. Following the examination, the distributee has a 10-day window to raise objections to the Will. If objections are filed in court, the litigation could become more protracted and costly.

After Letters Testamentary Issued: At this point, the Executor has the authority to gather the decedent’s assets, pay any outstanding debts, and distribute assets according to the terms of the Will. Additionally, they can access the decedent’s financial accounts, sell property if necessary, and distribute assets to the beneficiaries as stipulated in the will.

Throughout this process, the executor has a fiduciary duty to act in the best interests of the estate and its beneficiaries, and they may be required to provide an accounting of their actions to the court or beneficiaries. The role of the executor culminates in the final distribution of the estate’s assets and the closure of the estate.

Probate Hiccups: In some instances, the probate court might determine that an executor should have limited authority over certain tasks or for a specific duration. When this happens, the Letters Testamentary issued will come with restrictions. These restrictions are typically outlined explicitly in the document. Reasons for such restrictions can vary:

  • The executor might be given authority only for specific tasks. For instance, they may be allowed to gather and appraise assets but not sell them.
  • The executor may be limited in dealing with particular assets. For example, if the estate includes a business, the executor might be restricted from making significant business decisions without further court approval.
  • If there are concerns about the executor’s potential conflict of interest with beneficiaries, the court might limit their powers to protect the beneficiaries’ interests.
  • If there’s ongoing litigation or a dispute related to the will or estate, the court might restrict the executor’s powers until the matter is resolved.

Whenever restrictions are placed, the executor must be mindful of these limitations and should not act beyond the scope of their granted authority. Acting outside these bounds can lead to legal consequences and potential personal liability for the executor.

The Value of Legal Counsel: Given the intricacies, you should advise your executor about the potential benefits of seeking legal guidance, especially when handling complex assets or facing a contested will. Preparing for the future isn’t just about drafting documents. It’s about equipping those you trust with the knowledge and tools they’ll need when the time comes. Encourage your executor to be proactive, ask questions, and consider all available options to ensure your wishes are carried out in the best possible manner.

Going Beyond Wills: The Role of Trusts

You may be thinking there must be an easier method than probate! The antidote to probate is the living trust. While Wills undoubtedly play a critical role in the realm of estate planning, living trusts provide a nuanced and comprehensive approach for many individuals. Here’s how trusts can augment and even surpass the traditional benefits of wills:

Bypassing Probate: One of the most significant advantages of a trust is its ability to bypass the probate process. Unlike assets solely governed by a Will, those placed within a living trust do not require court validation before distribution. This ensures a quicker and more confidential transfer of assets.

Continuity of Management: The trust document appoints an initial trustee responsible for the management of trust assets during the creator’s lifetime. Upon their passing or incapacitation, a successor trustee seamlessly takes over. This continuity can be invaluable, ensuring that assets are always under stewardship.

Immediate Access to Funds: Delays in probate can tie up assets for prolonged periods, which can be challenging if beneficiaries need immediate financial support. With a trust, assets can be distributed without such waits, providing particularly crucial for dependents like minor children or those with disabilities.

Protection for Business Interests: For those who own businesses, especially closely held ones, time is of the essence when ensuring continuity after an owner’s death. The probate process can cause operational delays, potentially jeopardizing a business’s viability. With a trust in place, there’s no waiting period for the successor trustee to take the reins, making sure the business continues to run smoothly or gets sold or liquidated as per the trust’s directives.

Flexibility: Trusts offer a flexible canvas for detailing who, how and when chosen beneficiaries receive an inheritance. Amendments can be made when family dynamics evolve.

Protection from External Factors: Some types of trusts can also shield assets from various external threats, such as creditors or legal disputes. Plus, with appropriate planning, a trust can provide a layer of protection against estate taxes.

In essence, while wills lay the foundation for estate planning, trusts offer an elevated level of control, protection, and efficiency. It’s akin to having an advanced tool in your estate planning toolkit, ready to address more intricate and complex needs.