When a will is being probated, one person is appointed as the executor. This person will oversee and regulate the process of managing the estate, as well as distributing the estate’s property after the will’s creator (or testator) dies. An executor is generally named specifically in the testator’s will. However, an executor can also be court appointed.
Additionally, more than one person may be charged with the role. In fact, most wills prepared by an attorney will often list two named estate executors, in case the first executor is unable to fulfill their duties or predeceases the testator.
An estate’s executor may be someone who is related to the testator, a spouse, or a friend. They may also be a lawyer, accountant, or other professional. The overall requirement for being a will executor is that the executor must be at least eighteen years old, and has not been convicted of a felony.
In terms of an executor’s duties, they are vast, and can vary widely based on the needs and size of the estate. Generally speaking, these are mostly administrative. Duties begin at the time of the testator’s death, and continue until all of the estate’s assets have been distributed and all taxes and bills have been paid.
Some examples of common duties of an executor may include, but are not limited to:
- Paying valid creditors, such as a bank;
- Notifying Social Security and other agencies and companies of the testator’s death;
- Canceling credit cards, magazine subscriptions, and the like;
- Distributing property assets according to the decedent’s wishes as dictated in their will; and
- Making court appearances as needed.
Executors may also be tasked with:
- Locating the testator’s original will, which is often kept with their attorney;
- Locating the decedent’s assets and keep them safe during the distribution process;
- Determining whether the will is the deceased’s last and most recent will, which will determine if the will is indeed valid;
- Creating a separate bank account in order to separate estate funds from their personal funds;
- Continuing paying necessary bills and debt payments;
- Filing the will document with the proper probate court; and
- Beginning distribution of the testator’s property according to the instructions they left in their will.
Additionally, the executor has a fiduciary duty. What this means is that they must act in a manner of good faith and impartiality when ensuring that the desires of the deceased are carried out to. Fiduciary duty is the duty to protect and manage a testator’s property according to the best interests of the estate. Fiduciary duty has determined that the estate’s executor must take reasonable steps to fulfill whatever instructions were left behind by the testator, in regards to their property and assets.
What Is a Letter Of Testamentary? How Can I Obtain a Letter Of Testamentary?
Generally speaking, an estate’s executor must obtain a letter of testamentary. This letter provides legal documentation and proof that they are actually the executor of the estate. Such documentation will be used when the executor is working with banks, beneficiaries, creditors, and other parties who are also part of the probate process. A letter of testamentary can help reduce the likelihood of various legal disputes and conflicts associated with the administration of the estate.
In terms of how letters of testamentary are issued and obtained, state laws may vary. Letters of testamentary generally must be obtained in person, as they are not available through online forms. The letter itself is most commonly issued by the probate court, which is the court that will be handling the will documents.
The executor will need to provide various documents when seeking a letter of testamentary. Such documents should include the will documents, as well as a valid death certificate of the testator. It is imperative that the executor obtains the letter of testamentary as soon as possible, as this will help perform their duties and tasks. Additionally, doing so may protect them against executor liability.
How Can a Letter Of Testamentary Assist With Legal Issues Involving Estate Administration?
There are many legal issues that can arise during the estate administration process. Some common examples include, but may not be limited to:
- Will contests;
- Disputes associated with property distribution;
- Various tax issues; and
- Various other conflicts.
Generally speaking, an estate’s executor has the legal authority to resolve certain issues and disputes. This can be done as long as it is within the authority granted to them by the will, and according to the letter of testamentary. However, any larger or more serious legal conflicts will most likely require additional litigation or lawsuits.
One of the most common conflicts associated with estate administration is whether the person who is claiming to be executor is actually fit for the role. Under such circumstances, having a valid letter of testamentary can provide the exact type of proof that is needed to confirm that they are the appropriate person to perform the tasks of an executor. Their ability to perform various estate administration tasks may depend on them having the letter of testamentary as support.
Can An Executor Be Removed From Their Position?
Having a letter of testamentary does not provide immunity from being removed as an executor. Removal of an executor may be necessary in cases in which the executor has committed a violation of some sorts, or is otherwise unable to fulfill their legal duties as executor. Breaching their fiduciary duty is one reason why an executor may be relieved of their duties.
Once again, state laws can vary widely in terms of the duties and limitations on the role of an executor. However, there are specific actions and conduct that will most likely lead to an executor being removed from their position.
Some examples include, but may not be limited to:
- Misusing the estate’s funds or property;
- Mixing their own funds with the estate account;
- Committing fraud or other legal violations associated with the estate;
- Mismanaging estate funds or property;
- Committing serious errors or oversights associated with property distribution; and/or
- Generally failing to perform their duties as executor.
When violations are especially serious, or when the executor has misappropriated or stolen estate assets, there may be a need to sue an executor of the estate.
If an executor is to be removed from their position, the challenging party will need to present their argument and reason for objecting to the probate court. This challenge must be supported with a legitimate reason to be removed from their position as estate executor, as well as any supporting evidence. However, the executor will be given the chance to defend themselves and prove why they should not be removed from their position.
If the will does not specifically name an estate executor, the probate court will generally select someone to serve as the estate’s administrator.
Do I Need an Attorney For Assistance With Letters of Testamentary?
If you are appointed as an estate’s executor and need to obtain a letter of testamentary, you should consult with a local and experienced estate lawyer. Because a letter of testamentary will be essential in carrying out your executor duties, it is important that you have legal representation when attempting to obtain the letters.
It is suggested that you work with an attorney near you due to the fact that state laws on the subject vary so greatly. Someone who is local to you will be best suited to helping you understand and adhere to your state’s specific laws.