Executor: To Be or Not to Be

December 20, 2010  
Filed under Money

By Jennifer R. Luitjens

Lets say you were named as Executor of your uncle’s Will. Either with or without foreknowledge of this nomination, you are now facing the decision of whether to accept this responsibility.

Your main duty as Executor is to “execute” the terms of the will — basically, getting assets from Point A to Point B. In Part 1 we addressed some asset identification issues (the Point A on the map), and now we will consider potential beneficiary issues (the Point B). How do you identify the beneficiaries? Are there many? Will they be arguing over the items in the house, or the terms of sale of the house, or simply scrutinizing every decision you make? These are the questions that will determine how complex the beneficiary side of the probate equation will be.

Let us first define the term beneficiary as used in this context. In a probate of a Will, there may be many interested parties, some of whom may be entitled to certain notices only and some who actually are or become beneficiaries.  However, in order to avoid confusion, we will limit the rest of our review to actual beneficiaries – those entitled to take some asset under the terms of the Will

Generally, a review of the Will should indicate how many beneficiaries exist. For example, “I give all my assets to Y and Z.” If X, Y, and Z all survived your uncle, then there are 3 total beneficiaries. And if you know they are all legally competent and cooperative, then perhaps you have an easy situation. However, if any have predeceased your uncle, you will have to look at additional terms to determine if this was considered, or whether you have now involved the estates of X, Y or Z. Yes, more complicated.

Now let’s consider that Y isn’t very cooperative – perhaps refusing to sell the house at a fair price, or questioning every division or sale of household goods. Or maybe the list of beneficiaries isn’t as clear as X, Y, Z, but to unfamiliar individuals or charities no longer in existence. Your duties may now have expanded to a search for beneficiaries. While you may be able to request certain remedies and specific instructions through Court Orders, your Executor job has become more time-consuming and perhaps more stressful.

Regardless of the complexity, serving as Executor is a responsibility. For many Executors, the process goes smoothly. However, if you do receive any advance knowledge, it may in your interest to give a moment’s pause to really understand the responsibility and consider whether you can simplify your later tasks by addressing any issues about assets and beneficiaries while your uncle is still alive and well.

Jennifer R. Luitjens is Certified as an Elder Law Attorney (CELA) by the National Elder Law Foundation, a non-profit organization accredited by the ABA. She lives in Jericho and practices in South Burlington with the Jarrett Law Office.

 

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