The articles from The Law Office of Patricia E. Tichenor, P.L.L.C. are focusing on
the areas of Family Law and Estate Law, and range of other legal areas.
For many people, choosing an executor for their estate means asking a spouse, adult child, or close friend or relative to take on an important responsibility after they’ve died. However, a friend or family member isn’t always the best person to serve as executor — and in some cases, the person you ask may not want to take on the role because of how complex and time-consuming it can be.
If you can’t seem to find an estate executor, there are several alternative routes you can take. Here’s what you can do if everyone you ask refuses to take on the responsibilities of being your executor.
What is an executor?
When someone creates their last Will and testament, they typically appoint a person to carry out their wishes when they die. This person becomes the executor of the Will. An executor is typically appointed by the testator. If there is no will, referred to as “dying intestate,” then a friend or family member (and even a creditor if no one else steps up) can seek to be appointed by the probate court as a personal administrator of the estate. The roles and responsibilities of an executor and personal administrator are the same; only their titles are different for purposes of seeking appointment and qualification.
Executors are responsible for managing assets and fulfilling the final wishes of the deceased individual. During the testator’s lifetime, it may be prudent to discuss with your chosen executor who you have named as beneficiaries on any assets outside of the Will, such as naming a pay-on-death beneficiary on life insurance, retirement, or a bank accounts; and those assets which you expect to require probate.
The key here is that, if assets pass through your Will, then those are probate assets. If they don’t pass through your Will, then they are non-probate assets. Such a discussion aids in a smoother transition at your death, and avoids your Executor listing the assets as “probate” assets that are, in fact, not probate assets on the forms he or she files with the probate court.
What are the duties of an executor?
There can be a lot of responsibilities that come with being an executor, however, there are attorneys that can be of assistance along the way. An executor should have access to, and copies of, any important documents, including the Will.
The executor should be familiar with all names, addresses and phone numbers of the beneficiaries identified in the Will and have a good sense of who they are in order to carry out the testator’s wishes accurately. They’ll need to make sure the testator’s debts are paid off before they can distribute assets to beneficiaries, so they will also need access to a list of any financial accounts and creditors the testator may have.
Why might someone refuse to be an executor?
There are many reasons why a person may turn down the role of executor. Some of the most common include:
- Disagreements between co-executors. In some cases, there may be more than one executor appointed by the testator. If the co-executors cannot agree on key decisions, the order of arrangements, or their responsibilities, they may decide to back out.
- Family tension. Part of the will may include distributing inheritances or allocating assets to members of the family. The executor may choose to leave their responsibilities if they face backlash from family who don’t receive things in the will or don’t get as much as another person.
- Amount of responsibilities. The job of being an executor can take a lot of time and effort that most people are not prepared for. There are certain things an executor must do before others, such as ensuring all debts are paid off before distributing inheritances and other estates. The appointed executor may not feel comfortable or may not have the time to carry out these responsibilities.
For this reason, it’s a good idea to have a backup executor in mind in case your primary choice backs out.
Options if you can’t find an executor
The process of finding an executor may not always be an easy one. If relatives and friends refuse the role when you ask, here are a few other options to explore.
- Ask your attorney or CPA or Certified Financial Planner. An experienced financial or legal professional can be an excellent choice to serve as an executor, as they have intimate knowledge of your finances and/or estate plans. This type of professional is also more likely to be familiar with the probate process and can ensure everything runs smoothly.
- Name a local financial institution or trust company. Financial institutions and trust companies can administer estates in Virginia. A corporation is also able to act as an estate executor. Keep in mind, however, that a corporate executor must be authorized to do business in Virginia to serve in this role.
- But – Before You Sign Your Will – Learn more about local Probate Rules first before naming someone who is not a beneficiary to serve as executor. Failing to name the same people who are your beneficiaries (like your spouse or children) to also serve as Executor(s) of your Will can result is much more substantial expenses for your estate. When the same persons who are beneficiaries of an estate are also executors, there will have far less paperwork burdens than someone who is not a named beneficiary. This is especially true when leaving your entire estate to your spouse or children. Consulting with an experienced probate attorney about this aspect of estate planning, before you die and before you sign a Will, is extremely important.
Your spouse, children, or other family members who you name does not need to consent to you naming them in your Will, and you should always reassure them that, after your death, they can work with an experienced probate attorney to help them step-by-step with advising, educating, and, if needed, handling the probate process. This should allay their reluctance to be appointed to serve in this role.
If you are looking for help finding an executor or need legal guidance regarding your current Will, preparing a new Will, or understanding the Probate Process in Virginia, contact the Law Office of Patricia E. Tichenor to discuss your concerns and schedule a consultation.
When you’re named as an executor of a Will, you’ll have a lot on your plate, and your responsibilities might seem overwhelming. However, this role is important and requires careful attention and consideration.
To help you fulfill your responsibilities as an executor, here are five common mistakes executors make and how to avoid them.
1. Not preparing for the process
If you’ve never served as an executor before, you may not understand what the process entails. It’s important to make sure you do your research if you’ve been asked to take on this responsibility. Learn more about anything that you don’t know and don’t be afraid to seek out as many potential resources as you can. This will help you to be better prepared to execute the terms of a Will.
In particular, make sure you understand the probate process and what it means to be a fiduciary — a person who acts in the best interest of someone else and legally owes them a duty of good faith, undivided loyalty, and honesty when making financial or legal decisions.
2. Disregarding the Court’s instructions
As an executor, you are responsible for honoring the decedent’s wishes while following the local Circuit Court’s rules. There are a lot of important regulations in estate law, from filing the Will with the correct probate court to the notification of the proper heirs, whether you can make payments to the creditors, how to pay the debts, and, lastly, how to document the distribution of any assets. In Virginia, each Circuit Court has its own set of required forms and processes, so you’ll want to be sure you thoroughly understand what is required at each stage of probate.
3. Not keeping in touch with beneficiaries
The executor of an estate must manage the assets and distribute them to the beneficiaries. That’s why it’s important to stay in touch with the decedent’s heirs to make sure they’re up to date as you go through the process of executing their loved one’s estate.
Communicate with the beneficiaries at every critical juncture. It may also be wise to set up regular meetings with them, as this will help to manage the beneficiaries’ expectations and keep them aware of the time the process takes.
4. Moving too quickly
The tasks of an executor cannot be completed in a weekend — they require time and patience. The administration of an estate where accountings are required can take anywhere from 12 to 24 months on average to complete. Rushing the process could put you at risk for liability, as it is your responsibility to act in the decedent’s and beneficiaries’ best interests. Make sure you take your time and complete each part of the administration process correctly.
5. Not asking for help
Serving as an executor is not an easy responsibility. Often, you will need assistance from licensed professionals for various tasks. Any professional you hire is likely knowledgeable and will act in the best interest of the estate.
It’s wise to consider hiring an experienced attorney to help with all the legal aspects of estate administration. You may also require the help of an appraiser to go over the estate’s assets (if necessary) and an accountant to help with the tax filings for the estate.
If you want to learn more about what it takes to be an executor or need legal guidance with a probate matter in Virginia, The Law Office of Patricia E. Tichenor is here to help. Contact us to schedule a complimentary consultation call today.
While it’s not a happy thought, you might wonder what happens to your online content when you pass away. Each social media platform has different protocols for handling a user’s “digital estate” after death, providing various options from memorializing an account to full deletion.
Here’s how you can protect your digital estate and look ahead to what your loved ones may have to do to close your accounts.
What happens to your online content when you die?
The average social media user spends more than two hours and 25 minutes on social platforms per day. Considering how much time people spend curating and sharing online content, it’s important to know how each platform handles digital estates after death.
- Facebook: Facebook allows family or close friends to memorialize the profile with a “remembering” badge. Memorialized accounts can’t be logged into, and it will no longer show up in birthday announcements or other public spaces. Prior to death, users can choose to designate a “legacy contact” to write pinned posts, make changes, or delete the account after their death. An executor can request the account be deleted if they have a birth or death certificate, or proof they are designated to handle that person’s affairs.
- Instagram: Instagram, like its parent company Facebook, also allows accounts to be memorialized. Memorialized accounts have a remembering badge, content cannot be deleted or added, and it doesn’t appear publicly. An executor can memorialize or delete an account only with a birth or death certificate, or proof that they have been designated to represent the deceased.
- Twitter: Twitter allows for accounts to be deleted by a family member or authorized executor. The requesting party must provide both their own ID and a death certificate for the deceased in order to close the account. Accounts cannot be accessed after the death of the account holder regardless of relationship.
- Snapchat: Snapchat only allows you to fully delete the account. To do so, an executor must have the login information available and will need a death certificate.
- YouTube/Google: Any Google user, which is the parent company of YouTube, can predetermine what will happen to their account after a period of inactivity. Users can specify that certain documents be sent to specified contacts or set the account to delete. Family members or executors can request data or deactivation of the account from Google by verifying their ID and sending the user’s death certificate.
How to protect your digital estate
To protect your digital assets after death, you’ll need to have your affairs in order and accessible for your executor by taking the proper steps.
- Record all digital assets. Keep a list of all digital assets including social media and email accounts, digital subscriptions, financial accounts, blogs, etc., as well as any necessary login information. Having a centralized record will make it easier for an executor to figure out next steps.
- Decide what happens to your accounts after you die. Predetermining if there are any assets you’d like deleted, passed on to family members, or saved forever can help your executor take action in handling affairs. Consider whether you’d prefer your social media accounts be frozen and “memorialized,” or fully deleted after your passing.
- Save important files on an external drive. In order to keep your most important files preserved and easily accessible, back them up using an external hard drive. Storing important files on a physical device can ensure the executor managing your digital estate won’t have trouble finding important documents.
- Update your list regularly. An outdated list can lead an executor astray by having them handle affairs that aren’t relevant anymore. By keeping a current, comprehensive list of all your digital estates, your executor can easily access all necessary information.
- Work with an attorney. Seeking out professional help from an attorney can ensure your digital assets are in order. They can empower an executor so they’ll legally be able to act on your behalf after death.
If you need some guidance, an experienced attorney can help you create or update your will, powers of attorney, trusts, and other appropriate estate planning documents. The Law Office of Patricia E. Tichenor has been serving the estate planning needs of Virginia residents for nearly 20 years. Contact us for a free consultation to discuss your circumstances and how we might be able to help you plan for your family’s future.