Demystifying Probate and the Executor's Role

When creating a last will and testament (commonly known as a will), one of your most important considerations is who to choose to serve as the executor (also called a personal representative) of your estate.

As the name implies, the role of the executor is to execute the instructions you provide in your will. You may give your chosen executor some discretionary powers in determining how your assets (money and property) will be distributed, but they have limited latitude to make independent decisions. Any deviation from their specified powers could cause a conflict in your estate that leads to legal consequences.

To avoid any unnecessary complications in the settling of your affairs, take care to avoid ambiguous or unclear language in your will. If there are doubts about your last wishes, the executor and beneficiaries may wish to consult an estate planning lawyer to discuss the next steps.

What Happens With Your Will When You Die

Upon the testator's death—the person who made the will—probate will be opened if the testator dies owning accounts or property in their sole name and without a properly completed beneficiary designation form.

Probate is the court-supervised process in which the testator's will is validated and administered. The executor in the will initiates and carries out the probate process. The probate process can vary slightly from state to state but generally unfolds in the following manner:

1. The death certificate is filed with the court.
2. The testator's will is submitted to the court and confirmed as valid.
3. A petition to initiate probate is filed.
4. The court allows the executor to gather, evaluate, and manage the testator's assets.
5. The executor contacts beneficiaries to inform them that probate has commenced.
6. Lists of the deceased's assets, debts, bills, and taxes are compiled and submitted to the court.
7. The testator's outstanding debts and taxes are paid from the testator's assets.
8. The remaining assets are distributed to the beneficiaries.
9. The estate is closed, and probate ends.

These steps imply that the decedent has, in fact, left a will. Dying without a will—known as dying intestate—entails much greater court involvement. The court appoints an executor, identifies heirs, and determines who gets what. Dying intestate can even empower the state to choose the guardian of your minor children.

It may not be possible to avoid probate altogether (e.g., if a guardian appointment is required for a minor child, if an executor must represent the decedent in a pending or new lawsuit, or if the decedent died with assets solely in their name and without a designated beneficiary). Probate duration and costs, however, can be reduced through careful estate planning.

Responsibilities of the Executor

The executor named in a will is responsible for carrying out the testator's final wishes. The executor is a liaison between the probate estate and the probate court and between the probate estate and the beneficiaries. Their duties include locating and valuing estate assets, paying debts, and distributing assets to beneficiaries per instructions in the will.

Executors owe a fiduciary duty to the estate and its beneficiaries, which compels them to act in the best interests of both. Because an executor may also be a beneficiary of the estate, their actions may be scrutinized to ensure they act fairly and legally.

When an Executor Can Use Discretion

To the best of their ability, the executor must carry out the directions expressly stated in the testator's will. They cannot change the will, but there are cases where the executor can use discretion when settling an estate. The testator might explicitly give discretion to the executor, or the need to exercise discretion may arise due to ambiguity in the will, as in the following examples:

• The will gives the executor wide latitude to decide when to sell the testator's property.
• The will allows the executor to decide whether to convert assets to cash before distribution.
• The will states that "reasonable and necessary" repairs must be made to the testator's home before its sale or distribution (words such as "reasonable" or "necessary" may be too vague and leave the executor confused about how to proceed).

If the will is unclear, the executor should seek clarification from the court to assist with interpretation. Anyone with a stake in the estate may also raise a legal challenge against the executor, asking the court to remove the executor or commencing probate litigation against them.

When a gray area exists within the will's provisions, and the executor acts in good faith and within the scope of their power and duties, the court may uphold their actions. A petition to remove an executor or a lawsuit against the executor for breach of fiduciary duty will only succeed if there is evidence of misconduct, such as the executor explicitly going against the will or estate's interests, acting in their own best interest or withholding an intended gift from a beneficiary.

Beneficiary Agreements to Change a Distribution

While the executor and beneficiaries cannot rewrite a testator's will after the testator has died, the beneficiaries may be able to agree to modify what they receive from the estate mutually.

Changes to distributions can be made using a document known as a nonjudicial settlement agreement. A nonjudicial settlement agreement is a contract that may be used whenever the beneficiaries agree that asset distribution should be different than what the will stipulates, including in these situations:

• As a strategy to minimize a beneficiary's inheritance tax
• When the family wants to balance out unequal distributions among all beneficiaries
• To settle disputes about the distribution of assets

A nonjudicial settlement agreement can be a way to resolve a loved one's legal challenge to the will. The court should respect this agreement if it meets applicable legal requirements. However, before signing an agreement to change the will's provisions, the beneficiaries should consult a probate attorney. Hence, they understand whether this type of agreement is legally recognized in their jurisdiction, along with the implications and potential consequences.

Legal Guidance for Executors and Other Family Members

In addition to assisting with a nonjudicial settlement agreement, many issues related to probate might require attorney assistance.

Executors, beneficiaries, and anyone who feels mistreated in a will may need to consult with a probate attorney to interpret and administer the will, determine their rights and duties under state probate law, and potentially challenge the will in court. In addition, when creating your will, it is crucial that you set out your intentions in a way that minimizes the potential for conflict among everyone involved.

Book a call for legal help with a will or probate issue.