It is very common for people to find themselves in the following situation: “I was named executor in the deceased’s will and I don’t know what I’m supposed to do.” If you have found yourself in this situation, you are off to a good start by finding this site. As the executor (the term “executrix” is sometimes used to refer specifically to a female personal representative of the estate) of the deceased’s will, you have been entrusted with a very important responsibility. By operation of law, upon the testator’s death, you became the personal representative of the estate. Your primary job, if you choose to accept the responsibility, is to carry out the testator’s wishes according to the terms set forth in the subject will pursuant to Kentucky’s probate laws. As the personal representative of the estate, you must carry out your role as executor with a certain standard of care that Kentucky’s law demands given your legal status as a fiduciary of the estate.
Even when the subject estate is relatively small, your duties and responsibilities as the executor can be very time consuming and complex. Fortunately, Kentucky’s statutes provide you with the opportunity to not only be compensated from the assets of the estate for your hard work, but to also retain an attorney to guide you through the complicated probate process. Regardless of whether you choose to engage our firm, some other firm, or no firm at all, you will be held to the same legal duty of care. And if you breach your duty of care, believe it or not, you can be held personally liable.
As an executor, your duties and responsibilities, among others, may include the following:
- You must make all reasonable efforts to obtain the latest original will.
- You must understand the exact legal effect that various terms in the will have on the ultimate distribution of the property (i.e. property being devised or bequeathed per stirpes versus per capita) so that the testator’s property is properly transferred.
- You will need to file a particular petition as well as other documents with the district court in the county the testator was domiciled at the time of death in order to initiate the probate process.
- You may be required by law to collect all of the decedent’s liquid assets and deposit them in a single checking account in the name of the estate. You will need to get a unique EIN number for said bank account from the IRS.
- You will need to do the best you can to account for any of the decedent’s personal property, including the discovery and documentation of any and all bank accounts and safety deposit box(es). Hence, you should consult with any and all banks and savings and loans institutions that you believe the testator might have had an account or safety deposit box at.
- You should check for cash and other valuables that may be hidden in places at the decedent’s home and document any such belongings.
- If there are any stock certificates or similar assets you will need to make sure the interest / dividends are properly collected and accounted for on behalf of the estate and its beneficiaries.
- You will need to locate and inventory all real estate deeds, mortgages, leases, and tax information.
- If there is any rental property, you will need to provide immediate managerial services for that property, if the services are not already in place. If they are in place, you will be responsible for paying the reasonable expenses from the estate necessary to ensure the rental property is properly maintained.
- If there is any real property in another state, you will need to arrange ancillary administration for the property located outside of Kentucky because real property is necessarily probated in the county where the property exists.
- You will need to determine what debts, if any, are owed to the deceased and collect the debt.
- You will need to collect all life insurance proceeds that the estate was the beneficiary of, if any.
- You are responsible for maintaining and protecting any and all of the deceased’s business interests, personal property, legal affairs, his or her personal residence, vacation home(s), timeshare(s) and other interest(s).
- Along with taking inventory, you may very well need to obtain appraisals for certain items.
- You will need to determine liquidity needs (the short term expenses of the estate).
- You will be responsible for the accounting / bookkeeping related to the estate’s affairs.
- You will have to pay VALID claims against the estate while rejecting and defending against IMPROPER claims against the estate.
- You may be responsible for filing income tax returns for the decedent and/or the estate.
- Significantly, you will be responsible for paying any and all state and federal taxes that may be due or become due.
- In some instances you should determine whether the estate qualifies for: 1) “special use valuation” under IRC § 2032A, 2) the qualified family-owned business interest deduction pursuant to IRC § 2057, or 3) deferral of taxes under IRC § 6161 or §6166.
- You will ultimately need to allocate specific bequests and any and all of the remaining assets to the correct beneficiaries.
Frequently Asked Questions
- What is the difference between an executor and an executrix?
- There is no difference. The term “executrix” is sometimes used to refer specifically to a female personal representative of the estate.
- Is an attorney required to probate a will?
- It is true that if you do not properly execute your duties and responsibilities as the executor of the estate, you may be personally liable to third party creditors, the estate, and/or the beneficiaries. Nonetheless, many executors are inclined to say “no” when they ask themselves, “Do I need to hire an attorney to help probate the will?” If you are having similar inclinations, please, whether or not you contact our firm, contact a probate lawyer who can help lead you through the probate process while lifting some of the weight and responsibilities from your shoulders. That way at the end of the probate process, you not only can be sure that you are fairly compensated for your work as the executor, but even more importantly, so that you don’t have to worry about any personal liability.
Legal Services Offered and Cost
Representation of Executor in Probating an Estate
Legal fees: hourly rate
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