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Questions to Ask Before Taking on the Role of Executor

Picture of By: Shannon McNulty, Attorney, The Village Law Firm

By: Shannon McNulty, Attorney, The Village Law Firm

Shannon's work is sophisticated and reflects her deep knowledge of the laws governing estates, taxation and child guardianship issues. Shannon approaches each client with sensitivity and compassion, understanding that many of the decisions that they will have to make can be difficult.

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There’s pride and honor that comes with being asked to be the executor (or administrator) of someone’s estate. You’re unlikely to find a clearer sign that this person trusts you as you’d be carrying out serious legal and fiduciary responsibilities to fulfill their last wishes.

It’s logical to quickly say yes and reaffirm their trust in you by taking on the role, but it’s important to understand the commitment you’re making and what an executor’s duties are. There are legal ramifications for failing to properly execute an estate, and you could face consequences if you’re not meticulous through the process. We want to explore some questions you should ask before you say yes.

Question 1: Were estate documents drafted by an attorney?

Your liability as an executor significantly lessens when the estate is properly formed. The best way to do this is to work with an estate planning attorney who knows the law and necessary guidelines. Hiring an attorney to work with the estate signals that this person took the process seriously.

If the answer is no, you have a few options. You could decline the role and ask them to look elsewhere which could compromise your relationship with them. Another, potentially more sensible option, would be to work with them to find an estate planning attorney who can review the plan and ensure all documents are enforceable. It’s possible or even likely that the attorney will want to use the existing documentation for reference only and essentially start from scratch on the estate plan.

Question 2: How will the assets be left and distributed?

Fulfilling the role of executor can often be thankless as beneficiaries and those left out of the will may look to you for answers about the details of the estate. If the estate needs to go through probate, all of the details will become public as the court sifts through the details and approves the plan. This provides ample reason to get ahead of any issues and ensure you understand both where assets are being held and where they’re going.

You should sit down and review the entire estate with this person if you take on the role of executor. Take note of any beneficiaries whose assets have been lessened or removed entirely. You should also be aware of any heirs, family members, and close friends who are left out of the estate. In these cases, you can prepare yourself for any disputes down the line by getting a better understanding of the reasons behind asset determinations.

This process should also include ensuring you have access to all the necessary documents and information to access assets as needed. You’re going to need access in order to transfer some assets and in order to take care of the debts of the estate.

Question 3: Is the estate going through probate?

As mentioned above, probate is a legal process that forces the details of an estate into the public eye and allows for additional scrutiny. This process can often take months or even years, and your role as executor will require you to work through the entire process. There’s nothing wrong with admitting your own personal responsibilities prevent you from committing so much time and attention to the estate.

We recently wrote about why avoiding probate is ideal for most estates. The process isn’t necessary unless an estate only has a will or the details of a trust are incorrect or illegal. Revocable living trusts are a great tool to completely avoid probate and make life easier on the executor.

Question 4: Where is the money?

This question has a twofold purpose: you need to make sure funding is available to cover all estate expenses and it’s important to cover whether or not you will receive a commission. For the former, an estate can spiral into a probate mess if funding isn’t available and accessible to tackle all associated expenses. For the latter, your time and effort should be worth something to you. If you’re not already a named beneficiary in the estate then you should ask for a commission to fulfill these obligations.At The Village Law Firm, we can help you carry out your role as executor. We understand the extensive time needed to get this done right, and we’ve seen firsthand how quickly things can go downhill if you don’t work directly with an attorney. Our focus is on providing New Yorkers and their families with peace of mind through the estate planning journey. Contact us to make sure everything is in order today.

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