It has probably been a few years, but sometime in the past, a friend or family member asked you if you would be willing to serve as the executor of his estate, and you graciously agreed to serve. Now, unfortunately, your friend or family member has passed away, and you need to know what exactly you are supposed to do.
When a person passes away, it is often necessary to settle his estate. This generally means that someone needs to gather all of the person’s assets, pay any of the person’s remaining debts, and ultimately distribute the person’s remaining assets to those people who are entitled to receive them. If the deceased executed a Last Will and Testament during his lifetime, the assets will pass to the people designated in the Will who are often referred to as the will beneficiaries. If the deceased passed away without leaving a Will, his assets will pass to his intestate heirs who are designated by state statute. In this post and subsequent posts, we will discuss what happens when someone passes away leaving a Will (we will save the discussion for what happens when someone passes away without a Will for a future post).
So back to our scenario, a loved one has passed away and named you executor. One of the first things you need to remember is that, even though the Will specifically says, “I appoint [Your Name] to serve as Executor of my estate,” you have not officially been appointed executor, and you do not have any authority to act on behalf of the deceased. You have really only been nominated to serve as executor. You do not have any authority to act as executor until the Will has been admitted to probate and you have been appointed executor by a court.
In order to be appointed executor, you will need to offer the Will for probate and enter a request to be appointed executor. The term “probate” is often generally used to describe all legal procedures relating to someone’s estate after they have died, but its specific meaning is “the act or process of proving a will.” When you offer the Will for probate, you are asking the court to admit the Will to probate and thereby give effect to the terms of the Will. Much like the point above about a Will only really nominating someone to be executor, the terms of the Will have no effect until the Will has been admitted to probate. So, even if the Will says that the oil wells go to Daughter and the ranch goes to Son, Daughter is not entitled to the oil wells and Son is not entitled to the ranch until the Will has been admitted to probate.
The sole question that the court is seeking to answer in an application to admit a will to probate is whether the writing being offered is in fact the valid Will of the deceased. Among other things, this question includes whether the Will was executed with the formalities required by law and whether the Will was subsequently revoked. If the court determines that the Will is in fact the valid Will of the deceased, the court will enter an order admitting the Will to probate and will most likely also appoint someone the executor to serve as the personal representative of the estate and carry out, or execute, the terms of the Will.
In subsequent posts, we will discuss the requirements of probating a Will and the duties you have agreed to undertake when you accepted your appointment as executor. If you have a will, probate matter or questions about estate planning, please contact Jason Harvey at email@example.com or 512-744-9300.
Jason Harvey is a partner with Duggins Wren Mann & Romero, LLP. He focuses his practice on estate planning, wills & trusts, and banking matters.