Elder Law Report
Elder Law Report
Probate Bootcamp: An Executor's Guide
What exactly happens when someone names you as the executor of their will? Far more than most people realize. In this enlightening discussion, attorneys Jane Dearwester and Haley Matson of McIntyre Elder Law pull back the curtain on the executor's role during their "Probate Boot Camp."
The conversation begins with a crucial concept many new executors don't fully grasp: the fiduciary duty. This legal standard means you're handling someone else's money with the highest level of care and responsibility. Jane and Haley walk listeners through the practical first steps every executor must take, from locating the original "wet ink" will to formally applying for appointment through the court. Even with a perfectly drafted will, the probate process requires court supervision and specific legal procedures.
Things get particularly interesting when the attorneys dive into the complications that frequently arise. Will contests from disgruntled heirs, allegations of undue influence, questions about testamentary capacity, and disputes over property distribution can transform a seemingly straightforward process into years of litigation. Drawing from their extensive experience in estate litigation, they share real-world scenarios where executors found themselves caught in family disputes while trying to fulfill their duties. The discussion covers executor compensation (up to 5% of estate assets), when to seek professional help, and how even simple estates typically take 6-12 months to settle.
Whether you're currently serving as an executor, have been named in someone's will, or are planning your own estate, this conversation provides invaluable insights into the probate process. Have questions about your specific situation? McIntyre Elder Law offers free consultations at their offices in Hendersonville, Charlotte, and Shelby. Visit mcintyrederlaw.com to learn more about probate and other elder law topics.
Hi there, I'm Jane Dearwester with McIntyre Elder Law. I'm joined today with our newest attorney, Haley Matson. Hi Haley, hi Jane, how are you? Good, she's joining us from Charlotte. I'm in Hendersonville today, and today we're going to talk on a topic.
Jane Dearwester:The title of it for us is Probate Boot Camp, and we're specifically here to talk about what executors need to know when they have been designated as an executor in someone's will, what they need to realize about what that role entails. So it's a pretty important role. In fact, you owe a fiduciary duty to the estate when you are qualified as an executor, which means it's a higher standard of care that you are dealing with somebody else's money, much like a trustee or like your financial advisor or banker handles your money. That is a fiduciary, so it's someone who's in a position of trust. So you're held to a higher standard, mostly because you're dealing with someone else's money and assets. So your job as an executor is going to require you to collect all the information about the decedent's assets, so the person who passed away hopefully you're close to them.
Jane Dearwester:Most people appoint an executor as their spouse, their child, somebody within their family, but it doesn't have to be. It can be anyone that you choose. So you want to be able to get information about the decedent's assets. Another thing you need to do as an executor pretty quickly you need to locate the original will. You need to find not just a copy but the original wet ink signature will and that's the document that you're going to present to the clerk in North Carolina in the county where the decedent passed away. And so once we have that will, haley, what are kind of the next steps for our executors once they found that will?
Haley Matson:Sure. So once they find that original will, they're going to go to the courts, they're going to submit it. They're going to be able to apply for their appointment as executor. So, even if the family member has a will, you still do need to go to court. You still do need to get appointed by the court as executor. Once you have that, you will take an oath and you may be required to post a bond. Some wills will have it waived, otherwise they may ask you to pay it. It's usually not too much, so you don't have to worry. After that, you're going to want to notify any heirs in the will and you need to do something called a notice to creditors. This notice is run for how many weeks? Three weeks, three to four weeks, three to four weeks, and it's usually published in a local newspaper or by giving direct notice to those creditors. And you want to make sure that you do that and you want to make sure that you don't miss doing that, because that can be a reason for why the will may have some probate holdups.
Jane Dearwester:Yeah, that could be a reason that creditors you want to get that going as soon as possible as well, to start that clock ticking for 90 days and if there are creditors that come forward, those claims can be validated or denied based on the timeliness. But really publishing that notice to creditors what it's doing is clearing title. So a lot of times people come in for their estate planning and say I want to avoid probate, so I want you to do a will for me, and I say, oh well, the will doesn't avoid probate. The will is the guide through probate. It tells us what to do, and so that's part of it. And so that's part of it Getting the creditors paid debts, taking care of final taxes, filing accountings with the court. And there are issues that can come up when you're an executor of an estate. There are ways that parties can challenge the will and you are stuck right in the middle of that.
Haley Matson:So maybe I'll ask you, haley, to talk about some of those situations where will can be disputed or at issue. Sure, I mean, oh man, we've seen a lot here at McIntyre. I mean we do a lot of litigation for that. They're usually called will caveats. Anyone disgruntled heir, somebody who thinks they deserve something, somebody who's been disinherited and knew they were disinherited, they will come out of the woodwork and they will contest the will and they can do it, like you said, for a number of reasons. Sometimes it's undue influence. So if you've been disinherited and you feel like maybe your vengeful sibling was saying things about you to your mom who passed away and that's the reason you can maybe bring something for undue influence.
Haley Matson:Lack of testamentary capacity Say, the person who wrote the will was suffering from serious dementia at the time, yet somehow still signed a perfectly good will. That's also a reason to bring a contest or a caveat. And additionally, there's also sometimes where folks just want a different part of the property or think that they were supposed to receive a property and then never did. They'll come in and they'll ask us to find the property, then try to get the property to them. So there's a ton of things that can happen with that.
Jane Dearwester:There really are a lot of ways and a lot of litigation that boils up around wills and estates, for sure, and I do full-time litigation for our firm, so I'm kept very, very busy with people contesting wills and heirs disputing about whether or not the executor is doing their job and their capacity. Oh yes, I forgot about that one.
Jane Dearwester:That one is big too To put the will into effect to do what the will says they should do. A couple other just quick things to remember. An executor usually is entitled to compensation up to 5% of the assets of the estate and an executor does not have to be assisted by any kind of professional. A lay person can come in and serve as executor. However, it may be important to retain professionals like a CPA, an attorney or a real estate professional.
Jane Dearwester:If there's real estate that's flowing through the estate. Again, you have a fiduciary duty to do these things correctly, and if you're not a numbers person, I would highly recommend retaining counsel and or a CPA to deal with the accountings that have to be kept up through the entire process, and the process can take anywhere from six to 12 months to multiple years. If it's a very complex estate, the estate may be open for a number of years, so you're on the hook for that the entirety of the time until there is a final accounting approved and it's signed, sealed and delivered with the court. So just know that that going into it it might not be quick and easy. I haven't seen too many quick and easy ones, but that's because I get the ones that kind of turn bad, but there certainly are those that can be pushed through relatively easily, especially when the will is very clear about what needs to be done.
Haley Matson:It also helps when the executor like knows about what's going on with the finances. I know in the Charlotte office we've seen surprise accounts come up which messes with the final accounting because the executor doesn't know what exists. So taking inventory prior to any of this and kind of keeping up with it can also speed the process along and make it easier for everybody.
Jane Dearwester:Oh yes, definitely so if you've been named as an executor or if you're putting together your will and trying to determine who's the best person to name as executor, please give us a call. If you're listening to this elder law report, we're offering you a free consultation at any one of our three offices We've got Hendersonville, Charlotte. Also have an office in Shelby. We'd be happy to speak with you and for more information on this topic, on probate or any elder law and estate planning related topics, please check out our website at mcelderlawcom. We look forward to seeing you soon. Thanks, Haley.
Haley Matson:Thank you Bye.