A typical situation that occurs at our law firm usually starts with a phone call. The caller informs us that their loved one has passed away, and they have been named executor of their loved one’s Last Will and Testament. During this initial conversation, there is usually a lot of confusion. Many people who call our office in this situation just do not know what to do, what they are supposed to do, and more importantly, what they are not supposed to do.
That begs the question … what are the duties of an executor?
The duties of an executor begin with the opening of a probate estate and filing the last will and testament of the decedent (the person who died). As I say time and time again, a will is not a will until a judge says it is. In addition to the filing of the will, all creditors must be put on notice, all valid debts must be paid, a final accounting and inventory must be filed with the probate court before a judge is going to authorize the distribution of the estate assets to the named beneficiaries in the will.
Typically, creditors will be provided at least four months in which they may make a claim against the estate. However, if the estate is insolvent (the debts and liabilities exceed the assets), the executor must give all known creditors notice that the estate is insolvent, at which point creditors will have an additional thirty-day period in which to contest the proposed plan of distribution.
Also, the executor must put on notice all known heirs of the decedent that a probate estate has been opened. In addition, most probate attorneys will recommend that waivers of service should also be obtained from all known heirs (this will speed up the process).
What happens if the executor misbehaves, violates the court orders, does not admit the last will and testament to probate, or commits other improper actions involving the probate estate? The executor can actually be held personally liable. One of the ways in which the executor can be held personally liable to the estate is through the sale of real estate. Let’s say the executor sold real estate using a relator for $225,000. However, what if one of the beneficiaries can prove that the appraised value was $300,000 and that a buyer could have been found that would have purchased the property for $300,000? Well, the executor could be held personally liable to reimburse the estate in the amount of $75,000!
As you can see, there are several requirements that are put on executors when settling an estate in Tennessee. There are also many, many pitfalls that can result in the executor being held personally liable if he or she is not careful. It is for these reasons that we recommend that executors always obtain legal counsel before opening any probate estate with the court.
If you have more questions regarding probate, then I encourage you to download my Free Book What To Do When a Loved One Dies. If you have other questions about probate or you have had a loved one pass away and need to speak with a Probate Attorney, please contact our office at (615) 490-0477 for an initial consultation.
As always, we are here to help!