Were you formally appointed as the executor of a deceased loved one’s estate? This means that you now have the legal responsibility of managing their estate, such as making sure creditors are paid and distributing property to beneficiaries.
Navigating the probate process can be a source of stress for those grieving a loss. Because it can be complex, it’s all the more reason that mistakes can be made during challenging times. This guide will introduce you to common executor mistakes that are made during probate and how to avoid them.
What is an executor?
Before we begin, here is a brief overview of the executor role and its associated duties and responsibilities.
When an individual passes away, their estate is made up of property and assets, of which some or all must pass through a court process called probate. The court will appoint a Personal Representative who is responsible for carrying out the probate process on behalf of the estate. The Personal Representative will either be an executor or court-appointed Administrator, depending on whether or not the decedent left behind a Last Will and Testament. These roles carry the same function, but differ based on the method of appointment.
If the decedent did leave behind a Will, then they should have nominated an individual to serve as the executor as well as instructions (terms) for how their estate should be distributed. The named executor will begin carrying out their responsibilities once they are formally appointed by the probate court.
If the decedent did not leave behind a Will, then the court will appoint an Administrator to carry out these duties.
Executor duties & responsibilities
The duties of the executor formally begin when they learn of the decedent’s passing. Hopefully, they were aware prior to their nomination as executor so that it doesn’t take them by surprise. (This is a great estate planning tip to keep in mind; be sure to have transparent conversations with key players in your Estate Plan and make sure they are comfortable with taking on their duties.)
The probate process will not start until the Will is formally filed along with a petition for probate. This must be done by the named executor or other interested party in the estate. Once this is done, then the court will formally appoint the executor so that they may begin to see to matters of the estate.
Here are some example duties associated with estate administration:
Taking instructions from the probate court judge
Identifying and taking inventory of estate assets
Notifying possible heirs and creditors of the estate
Paying taxes and creditors out of the estate
Making distributions to named heirs and other beneficiaries
Filing applicable court documents and orders
Be sure to check out our complete guide on the responsibilities of an executor.
Top 10 executor mistakes to avoid (& how to avoid them)
The legal system is complex by precedent, and it’s the key reason why most individuals hire an attorney to help them navigate it. Probate is one instance in which hiring an attorney is optional, and many executors choose to self-navigate the process (especially if the estate does not leave instructions for hiring an attorney.) However, because the system and processes are complicated, it’s easy to make mistakes. While some mistakes are clerical and can be fixed, other mistakes can be quite costly.
If you decide to accept your role as executor to an estate, then you must be diligent to follow instructions as closely as possible.
Here are the top 10 executor mistakes to avoid and how to avoid them:
1. Missing deadlines
Serving as an executor can be a double-edged sword. If you were close with the deceased, then you have the right to take the time to grieve. On the other hand, time is of the essence when it comes to probate. For instance, you could miss important deadlines, or allow unpaid bills to rack up or taxes to accumulate. There’s also the matter of heirs who are awaiting for probate to wrap up so that they can receive their share of the inheritance.
Be sure to understand the probate rules in your state and get the ball rolling by filling the Will for probate within the appropriate time frame. Once probate opens, the judge will assign you various deadlines, so be sure to meet those in time as well. Don’t be afraid to obtain support or take advantage of resources to help you navigate this complex process.
2. Failing to give proper notice
One of the key purposes of holding probate is to provide notice of the death so that debts can be paid out of the estate. However, for these debts to be paid, creditors must be notified.
As the executor, one of your essential duties is to properly advertise the estate and the death. The probate court will give you specific instructions on how to publish these notices. Typically, you will run an advertisement in the most widely-read local publication for a number of days. This gives creditors the opportunity to be notified of the estate and ample time to come forward and make their claims.
3. Not securing estate assets promptly
As the executor, one of your main jobs is to preserve estate assets and their value such that the estate can pass on as much as possible to the decedent’s beneficiaries.
For example, you must make wise decisions in regards to handling financial assets such that they don’t lose face value, or paying taxes or bills in a timely manner so that they don’t accrue interest or late fees.
When it comes to physical assets, you may need to secure them quite literally. For example, a vacant piece of real estate might be vandalized or lose its curb appeal if it isn’t properly maintained. Further, eager heirs might break in and start pilfering through the decedent’s belongings. (They may not have any bad intentions and not know any better.)
This means that you need to promptly secure assets by any means necessary so that you maintain sole control over any estate assets and property until the estate can be properly settled.
4. Not taking thorough inventory
Thoroughly documenting the assets and property belonging to the estate is crucial. Whether the beneficiaries will receive their share per the terms of the Will or through intestate succession, it is important that all assets are identified and consolidated. In some cases, physical possessions may be liquidated (such as through auctions or estate sales) to help pay estate debts or to help divide the estate amongst heirs.
5. Distributing assets without court authority
Be sure to distribute assets to beneficiaries only after you’ve received authorization from the probate judge. Jumping into distributions before the estate can be closed is a common mistake. It can be easy to cave to pressure from eager beneficiaries, or wanting to just be done with the process for once and for all. However, you’ll want to protect yourself and wait for the probate court’s authorization so that you cannot be blamed for any slip-ups.
6. Forgetting to keep detailed records
Speaking of slip-ups, don’t forget to keep detailed notes, receipts, and documentation for every action that you take as an executor. The distribution of an estate can be a very emotionally charged process, and at times, an heir could point the finger at you. Be sure to protect yourself by backing up all of your actions. Here are some examples:
Proper accounting entries
Carrying and market values
Statements showing carrying & market values, investment gains & losses
7. Forgetting to retrieve mail
One of your tasks as executor includes retrieving mail of the decedent. To make your job easier, you can arrange to have the decedent’s mail forwarded to you. It’s still a good idea to visit their residence from time to time to ensure that mail doesn’t build up. (It could invite burglars or vandals if they can tell that no one’s been home for a while.) You also want to make sure you don’t miss any important notices, bills, or claims.
8. Not communicating with beneficiaries
Another common mistake is keeping information to yourself. It might be tempting to stay silent if beneficiaries are impatient and are demanding information, so curtail this pressure by maintaining open, regular communication with beneficiaries. This can help prevent unneeded drama. Also avoid playing favorites amongst the beneficiaries. This can be done unconsciously. For example, you might be more partial to sharing information with the beneficiary that you have the closest relationship with, or the one who is most polite to you. However, that is unfair to the other beneficiaries.
It is best to maintain the same communication with all of the beneficiaries as a group and keep
9. Failing to follow all of the terms of the Will
While you will receive plenty of instructions from the court, don’t forget to closely follow all of the terms of the Will. The Will of the decedent should be treated as the North Star, since the overarching goal is to honor the wishes of the decedent. As the fiduciary, you were given the responsibility of carrying out the wishes and terms laid out in the Will.
10. Forgetting to keep track of your executor expenses
Last but not least, don’t forget to track any expenses you incur as an executor. It’s helpful to treat the role as a business, meaning you track every expense, service provided, and provide documentation to go along with it. Any out-of-pocket expenses incurred will be reimbursed to you from the estate.
The Will can also specify an executor fee to be paid to you, but if not, state law also provides guidelines on how much executor payment will be. Find out more about executor payment here.
Here are examples of reimbursable expenses:
Debts and bills you had to pay before the estate could be opened
Office supplies and postage
Attorney and other professional fees
Is the executor liable for mistakes?
Before you agree to serve as an executor for someone’s estate, you should know what you’re signing up for. Not only is it an important responsibility, you could be held liable if you fail to carry out your assigned duties.
The severity of consequences depends on the laws of your state, as well as the probate judge’s rulings made on a case-by-case basis. In some cases, a simple clerical error will be pointed out and can be corrected. In other cases, mistakes or failure to carry out duties can result in a removal from the position. However, there are more severe cases in which you could be held liable and even sued for your actions, especially if those actions led to financial damage to the estate.
If you’ve been wondering what type of common executor mistakes can occur, there are many. This guide discussed ten of the most common executor mistakes and how to avoid them. Navigating the probate process is complex, and the responsibility of the executor is great. The intention is not to scare you or make you anxious; rather, it’s to point out that this fiduciary role is intricate and requires great care. However, you can absolutely do a great job with the proper support and resources.
Know that there are affordable resources available so that you can have the confidence throughout the process. At Trust & Will, we understand that navigating the probate process can be overwhelming– but we're here to help. Our plans provide clear, county-specific guidance and support from probate experts so you can stay on top of the process. Learn more about our probate offerings.
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