It is important to make sure that an individual’s last wishes are followed through with successfully and efficiently. This can be made exponentially easier with a Virginia Probate lawyer to help guide you or a loved one through this process. Figuring out the role of the executor in probate can be taxing; contacting an experienced attorney can help provide incredible support and assistance during this tough time.
Probate is the proving of a decedent’s last will and testament, but is a term more commonly used to refer to the court procedure necessary to administer an individual’s assets upon his or her death. An individual may be nominated in a decedent’s last will and testament to serve as the executor of the estate. However, even though a nominated person may have the opportunity or the priority to serve does not necessarily mean that he or she is required to serve as the personal representative or executor of the estate.
Often, during his or her lifetime, an individual will ask a person’s permission before naming him or her as a personal representative or executor. Therefore, such an individual may be aware that they has been named to take on that responsibility upon the death of the decedent. At first, the executor may be unsure of their exact role in probate, and the particular responsibilities that come with that title. An experienced attorney can assist in explaining these specific roles and obligations.
Role of the Executor
An executor is the fiduciary who has the responsibility of administering a decedent’s assets upon his or her death. Generally, the executor’s role in probate includes such obligations including marshaling all of the assets of the estate, paying any legally enforceable debts, filing all applicable taxes, and making distributions pursuant to Virginia law or to the terms of the decedent’s last will and testament.
In order to be appointed to have the official authority to serve as the executor of an estate, an individual must make an appointment with the clerk of the appropriate circuit court in Virginia. Generally, the appropriate court is that of the jurisdiction in which the decedent was last known to reside. The Code of the Commonwealth of Virginia provides who has the authority or the right to qualify as an executor.
A further role of the executor in probate is to ensure that all necessary documents make it into the hands of the clerk of the circuit court. It may be advisable for an individual to bring certain items including the original will if any, a certified copy of the death certificate, witnesses to the will or depositions of such witnesses if required, a check for the fees and estimate of the assets, the names, ages, and addresses of all of the heirs at law, and valid photo identification.
In cases in which an executor resides outside of the state of Virginia, he or she must bring a Virginia resident to the appointment to either co-qualify as the representative or executor or to be designated as the resident agent.
Benefits of an Attorney
Often, an estate and trust attorney can assist with the entire administration process. Very quickly after the death of a loved one, an estate and trust attorney can assist in the appointment of an individual to act on behalf of the estate. He or she can also assist with creating an inventory of the assets, advising the executor or personal representative of his or her fiduciary obligations, helping to address or evaluate any legally enforceable debts, and creating a plan for the distribution of the estate assets.
The common concepts that are involved with the administration of an estate can be complicated. Both state and federal tax implications may arise; some accounting principles are required. Generally, an individual who is not experienced in dealing with estate administration procedures may find such concepts time consuming and overwhelming, and the specific role of the executor in probate may be skewed. Often, with the help of an estate and trust attorney, some of that burden can be shifted to the attorney. In addition, an estate and trust attorney may be able to advise an executor of their obligation so that the individual does not run afoul of any of the tax or probate laws. It can be incredibly beneficial for an executor to hire an experienced probate lawyer to assist with the entire process, and to navigate any problems that arise.