Executor has solemn duty
September 28, 2012
When a probate case is filed with the court, the court appoints an executor to manage the probate. When someone is appointed as an executor – also known as a Personal Representative or Administrator- there are certain legal obligations and duties he or she must carry out. In Douglas County, an executor must actually sign a court-form acknowledging that they bear these duties before they can begin to act on behalf of the Estate.
Foundational to all of these duties is the fact that an executor acts in a “fiduciary capacity.” This means that the executor must manage the assets of the estate and treat all the beneficiaries and creditors of the estate fairly and equally. The executor is often a beneficiary of the estate, and he or she cannot show preferential treatment to him or herself, nor to any one beneficiary or creditor. These duties can be generally broken down into the following:
1. Give Everyone Notice. As the executor, you must give fair notice to every interested party – whether that is a creditor, next-of-kin, or beneficiary named in a will. When an executor cannot located some entitled to notice, the they will have to be given notice by publishing it in the newspaper. The basic principle here is that the executor cannot hide things from those entitled by law to know, even if the executor does not like the person, or if the person is difficult to work with, or even (on occasion) if they have been disinherited. Part of probate is the right to know, if even the person has no ability to object or change the outcome.
2. Segregate the Assets and Keep Good Books. As the executor, you must keep the assets of the estate separate. The assets of the estate are not the executor’s personal belongings. They must be kept separate and segregated so it is clear that it is owned by the estate. This may mean keeping a separate storage unit and bank accounts. It clearly means keeping good books and records. I recommend that an executor use the services of a good bookkeeper or Quickbooks to keep the financial records of the estate. I also recommend that the record keeping be set up immediately upon appointment; do not wait until the accounting is due six months later. Otherwise, an Executor will spend hours recreating the records that he or she knew, from the beginning, had to be kept. Failing to segregate assets, keep good books, or account regularly, could expose the executor to civil or criminal liability from the estate’s creditors or beneficiaries.
3. If in Doubt, Ask. There are certain things an executor cannot do without first going back to the court, like selling real property. But there are many gray areas. When an executor is unsure, and cannot get the written consent of all the interested parties, my best advice is to go get a court order. This is not a situation where “do now, ask later” is wise. Such actions may expose the executor to civil or criminal liability, or court contempt. Rather than be at risk of personally assuming the deceased’s debts, or being subject to a judgment from an heir, an executor should go back to the judge and get a written order confirming or giving clear direction on how to proceed.
As an executor, you are taking on a solemn obligation to the court at a very difficult time. I have the greatest respect for those taking on such responsibility. However, you should be clear about what those responsibilities are. You can download the court form “Personal Representative Instructions” at the Douglas County District Court website: http://cltr.co.douglas.nv.us/courtclerk/Forms_Download.asp. Additionally, when working through the probate process, you should work with competent counsel who can advise you on how to carry out these responsibilities.
Cassandra Jones is an elder law and family law attorney in Gardnerville. She can be reached at 782-0040.
If you have any questions or would like Jones to write about a specific elder law topic, email them to firstname.lastname@example.org.