Being an executor of an estate is a serious responsibility. It should not be taken on lightly, especially if you don’t fully understand the law. That because estate beneficiaries could sue you if they end up being out of pocket. We have heard of cases where quite large sums of money were involved. One unfortunate executor who did not discharge his duties correctly could not afford the garnishee orders that followed, and his wife walked out on him after he lost their house. You may like to file this post somewhere safely. We would hate this happening to you.
The First Big Mistake: Not Having Authority or a Will
With the best will in the world you can’t possibly work off what other people tell you. They can do strange things with the possibility of an unexpected bonanza ahead of them. You absolutely have to find the will before you do anything else.
You must be able to prove you acted in faith and did everything you could to find the will. Even though there is always a possibility there never was one.
Keep a diary of all your efforts, including searching the home thoroughly and going through all the papers. Make a note of any attorneys and insurance brokers and follow up on all the clues.
If you find a will you must apply for probate (permission) before executing it. If you are unable to find one, then the person died intestate (without a will) and you have to follow the law of succession.
The Second Mistake: Not Looking After the Assets Properly
More than a few executors get into trouble by mistakenly thinking they are in charge of the estate. They are most certainly not! The law is fully in control and you could be in serious trouble if you go against it.
The creditors have first claim on the assets, and they can come after you as executor if they end up out of pocket. This is why it is important to advertise the estate over and above the probate process. However you must also act diligently too.
Diligence includes going through insurance policies, bank records, tax returns, and official registers, and making every effort to track down assets, especially the significant ones.
You also have a duty to ‘secure and preserve’ assets under law. If you leave a grand piano in the garden and it rains, then you, the executor and not the heir may have to pay for repairs.
The Third Mistake: Playing Fast and Loose with Assets and Finance
You have no right to give assets and money away, no matter how justifiable a claim may seem. If you manage the finances of the estate as a ‘separate business’ with own bank accounts you are on the right track.
Therefore, you have a duty to collect all monies owed to the deceased at the time of their death. These could incline wages, social security, pension, and interest due on investments and bonds. If you overlook something you could be out of pocket too.
The only benefit you may claim as executor is a ‘reasonable payment for your trouble’. However, you are not in control of this either. The court will decide based on a quantified claim. An estate never ‘belongs’ to an executor. They are merely a conscientious manager operating within the rules.
