Probate is a legal process which involves a decedent’s estate petitioning the court for authority to distribute assets. While it can be an emotional and distressing time for participants due to the death of a family member, the attorneys at Barnes Cadwell Law can guide you through the probate process as efficiently as possible.
One of the major goals of probate is to marshal a decedent’s assets to protect value and ensure that distribution occurs per the decedent’s wishes. To do this, an executor must be appointed to administer the estate.
Who is the Executor?
A decedent’s will identifies an executor of an estate. This is the person responsible for administering the estate. While the executor is named in the will, the executor’s authority is evidence by letters testamentary, which are issued by the court.
Who Should Serve as Executor?
When drafting a will, one should give thoughtful consideration as to who is best suited to serve as executor. The executor could be a trusted family member or friend. Many people will consider their children as executors. However, family members might not always be the best choice, for a variety of reasons:
- The death of a loved one is a stressful time, and serving as executor may be difficult while in the grieving process.
- Family tensions could arise, as often the executor is called upon to make difficult decisions. To ensure future family harmony, sometimes it is best to have a non-family member serve as executor.
- While well-meaning, a family member may lack the experience, financial acumen, or temperament to address the myriad issues involved in a probate.
- Administering an estate can require significant time and effort, which could be difficult for a family-member who has family and job obligations.
- Serving as executor could impose a financial burden for a family member who might miss some work, or be pressured by other family members not to accept an executor’s fee.
An individual drafting a will should also consider non-family members as possible executors. This could include a professional fiduciary. While a professional fiduciary involves cost, it could be a more financially sound decision, as a professional fiduciary can offer relevant education and experience in administering the estate.
What happens it a person dies intestate, meaning without a will?
In this case, the court can appoint any competent adult as executor. At the death of a loved one, it is important to establish whether a will exists, and if not, to either petition the court for probate, or respond to a petition for probate, so that you may have some input in who will serve as executor. Since the executor plays a significant role in administering the decedent’s estate, ensuring an appropriate person is appointed is important.
What Happens in a Probate?
Once a petition for probate is filed, the court will issue letters testamentary authorizing the executor to act on behalf of the estate. The executor must gather all the assets and ensure that they are safe. This means prudent measures need to be taken to avoid theft, loss or damage. Bank accounts must be monitored, investments reviewed, property insured, and bills paid. The decedent’s tax returns must be prepared and filed, and appropriate taxes paid. The estate’s beneficiaries must be identified, and the executor will submit to the court for approval a plan to distribute the assets.
Must the Executor Pay all Bills of the Estate?
The executor has a duty to ensure that the estate pay all known debts, to the extent possible. If the estate does not have sufficient assets, the court and state law will address the order in which creditors are paid.
The executor may not be aware of all outstanding obligations. This is why the probate process is important. It gives creditors a set time within which to present claims. If a creditor does not present the claim within the time-period as set by law, the creditor could lose its right to payment.
What if an Estate is Not Probated?
Not all decedents’ estates are required to be probated. For example, “small estates” as defined by state law could be exempt from probate. Further, holding assets in joint tenancy, as marital property, in a transfer-on-death account, or held in a living trust, could eliminate the need for probate. Similarly, retirement assets, life insurance assets, and annuities could be non-probate assets. However, just because a probate is not required does not mean that an executor should not petition the court. Sometimes, a probate is the most prudent course of action, even if it is not required by law. Some examples of this could include
- Situations where family members are arguing
- Who are the true heirs and in what proportion?
- Were some heirs to be disinherited?
- Is there a question as to who should serve as executor?
- Is there disagreement as to the proposed distribution of assets?
- Is there disagreement as to whether assets should be sold or distributed in kind?
- Situations where the will is questioned
- Is the will a forgery?
- Was it later amended or revoked?
- Does it truly reflect the decedent’s intent, or was the decedent unduly influenced or coerced?
- Was the decedent competent when the will was drafted?
- Does it violate law, or is it defective in some manner?
- Situations in which an estate’s executor has acted improperly
- Is the executor competent?
- Is the executor fair?
- Is the executor honest?
Because so many issues can arise when administering an estate, it is important to consult early with an experienced estate attorney to ensure that the decedent’s wishes are adhered to, the beneficiaries are treated fairly, and the estate is administered in a timely and efficient manner.
Call Barnes Cadwell, preeminent Indianapolis probate attorneys, at (317) 804-5058 for a consultation to learn about your rights and responsibilities as executor or beneficiary, and to ensure that your questions are addressed and your loved one’s estate is administered properly.