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.
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.
If you’re afraid your heirs might challenge your Will, you can add a no contest clause to protect your wishes.
With this clause in your legal arsenal, your beneficiaries likely won’t risk challenging your Will and losing everything you left them. They may, however, first seek a court judgment as to whether a claim would trigger this no contest clause (as recently issued in the case of Hunter v. Hunter).
Here’s everything you should know about a no contest clause and how it’s enforced in Virginia.
What is a no contest clause?
In a Will, a no contest clause — also known as an in terrorem clause — is intended to prevent beneficiaries from challenging any terms. For instance, let’s say you have a child who is a bit of a spendthrift. If you leave them $20,000 and they challenge the Will to try to get more and end up losing, they no longer have the right to claim even just the $20,000 under the terms of the no contest clause.
Most of the time, these clauses make clear that if a beneficiary does decide to challenge the Will (and loses), they will not receive anything allotted to them. However, some states include caveats to the clause that make it unenforceable, thereby minimizing its influence in such conflicts. These laws exist to ensure that the writer of the Will maintains control over the contents as they are outlined, discussed, and eventually distributed to its recipients.
No contest clauses under Virginia law
In regard to Virginia’s specific statutes surrounding no contest clauses, there are key factors to remember. Many of the no contest clauses are written broadly, with some even choosing to include a disinheritance if any challengers take actions that could interfere with the administration of a person’s estate or trust. More often, no contest clauses are drafted in a narrow manner and only directly apply to challenges of a Will or trust.
An ongoing discussion about Virginia’s no contest clauses comes down to whether a no contest clause closely adheres to Virginia’s state laws. If a no contest clause is drafted with broader wording, it is more likely to be challenged in court. In contrast, a carefully drafted no contest clause leaves little room for any beneficiaries to find a good enough reason to challenge your Will.
In the case of Hunter v. Hunter, the Virginia Supreme Court approved of an alternative-pleading model for trust beneficiaries. The beneficiary may first seek a declaratory judgment from the court to determine whether their proposed challenge would trigger a no contest clause, and then decide whether to proceed with prosecution. In practice, this ruling can clarify the terms of the no contest clause, potentially reducing the likelihood of your Will being challenged in court.
Why would you use a no contest clause?
No contest clauses could be useful should you choose to make some last-minute changes to the Will. Generally, the best reason to insert a no contest clause, should this problem ever arise, is if you have good reason to be afraid that a close (and most likely disgruntled) relative would contest the contents of your Will after your death.
Additionally, including a no contest clause leaves you more room to make the changes you wish to your Will and estate administration without worrying about having it questioned or changed in a way that is unsatisfactory to you.
Need help drafting a no contest clause to include in your Will? Contact the Law Office of Patricia E. Tichenor to schedule a complimentary consultation.