If you’re currently experiencing the pain and grief that follows the loss of a loved one, we are incredibly sorry for what you’re going through. There are many things that make death so hard to process, whether it was expected or sudden. The most unfair part for many people is that this overwhelmingly emotional time is often prolonged due to the legal and financial obligations that must be dealt with, and may take months – or even years – to resolve. The most complex of those is often probate, which is a court-managed process for dividing and distributing assets following a person’s death. Much of the responsibility of probate falls on the shoulders of the estate executor (who may also be referred to as the personal representative). If you’ve been named the executor of your loved one’s estate and are unsure of what is ahead of you, be sure to continue reading.
What Is Probate And Why Is An Estate Executor Necessary?
As already stated, probate is a legal proceeding that is supervised by the court as assets are transferred from a deceased person’s estate into the names of the heirs or other beneficiaries. The will left behind by the decedent (if they had one) must be validated by the court before the assets can be distributed according to its terms. Many people are surprised to find out that having a will does not stop an estate from having to go through probate in many cases. However, if there was a will, it likely named which of the decedent’s relatives they wanted to serve as the estate executor.
If there was no will, the judge overseeing the probate case should have appointed the individual who would act as the personal representative of the estate. Family members are generally allowed to volunteer themselves, as long as they are over the age of 19, are not convicted of an “infamous” crime, and are mentally and otherwise fit to perform the duties required. In the event of a family dispute, however, preference is given first to the spouse of the decedent, then to their heirs. They have 40 days to petition the probate court for letters of administration; if they fail to do so, they lose their priority, and the responsibility will be passed on to the individual with the next-highest priority.
The reason it is necessary for someone with a vested interest in the estate to oversee the transfer of assets is to ensure that the decedent’s wishes are followed, as outlined in their will. In addition, they protect the estate and safeguard all of the real estate, investments, and personal belongings from loss, theft, or mismanagement. Without the probate process and an executor, any ordinary person could claim and take from the estate.
If I Am The Estate Executor, What Are My Obligations?
First, it is important to note that you have the right to refuse the role of executor or personal representative, even if you were named so in the will. If you choose to accept responsibility, you have three main obligations: collect assets, pay debts, and distribute assets to the appropriate people. Sounds simple enough, right?
Unfortunately, to accomplish those three things, there are a host of other tasks involved. You should be aware that, as an executor, you now have a fiduciary duty to your loved one, even though they are no longer living. Being a fiduciary means that you have certain legal and ethical duties you must carry out because you hold a position of trust and must act in a way that benefits others, such as creditors and beneficiaries. Your actions should display a sense of honesty and good faith, and show that you are handling the estate efficiently – without being negligent with time and money.
The steps of probate include:
- Submitting the death certificate and will to the court
- Filing the initial petition to open probate
- Notifying interested parties (such as beneficiaries and potential creditors) of the death and active probate proceedings
- Completing an inventory and appraisal of the assets
- Notifying creditors
- Paying outstanding debts and expenses
- Paying the estate taxes, if there are any
- Distributing assets according to the terms of the will or Alabama intestate succession laws
- Completing a final accounting of the transactions related to the estate, including income, expenses, and distributions; then submitting the report to the court for approval
- Obtaining court approval that the above tasks are complete, and petitioning to close probate
What Challenges Could Arise During Probate?
After everything, it takes about 9-12 months before probate is resolved, assuming that no complications arise. If the decedent’s will is contested, probate proceedings must cease until the validity of the will is determined. This can cause a significant delay in distributing the assets, as well as be emotionally and financially draining for all parties involved. In addition, there may be especially complex legal issues pertaining to the estate that need to be worked through, such as disputes over property ownership, multiple wills, or blended families.
Do I Need An Attorney To Help Me, Or Can I Do It On My Own?
As you’ve probably realized, taking on the role of executor is a lot of work, and there are many things that could jeopardize your progress along the way. While there’s no requirement to work with a probate attorney, it would certainly lighten the load – especially when you may still be in a time of mourning and find it difficult to perform even day-to-day activities. There is also a chance that you may make a mistake that takes more time and money to correct. An experienced and knowledgeable probate attorney can assist you with the following, and ensure that costly errors are avoided:
- Collecting proceeds from life insurance policies
- Identifying and securing estate assets
- Appraising your loved one’s real property
- Paying bills, debts, and applicable taxes
- Resolving any income or estate tax issues
- Preparing and filing all paperwork with the court
- Managing the estate checking account
- Transferring assets to their intended beneficiaries
Contact The Ladd Firm For Effective Navigation Through The Probate Process
Our seasoned attorneys have over 50 years of combined experience with Alabama probate cases of all levels of complexity. Don’t endure months of stress and anxiety as an executor just “hoping” you’ve done everything correctly. We are dedicated to guiding you through probate confidently and efficiently! Call today to schedule your free phone consultation and learn more about how we can make a difference in your experience.