A very common question that we will receive is when an adult child calls to tell us that their parent has passed away, or a spouse calls to tell us that their husband or wife has passed away. The adult child or spouse is usually calling because their parent or spouse had a last will and testament and the adult child or spouse was named as the executor in the will, and he or she is asking what to do.
First, even though you are named as the executor in a Will, doesn’t mean that you are required to serve. Most Wills have back up executors if the first named executor chooses not to serve and/or is unable to serve. In addition, if there is no back up executor, there is a procedure with the court to have an executor/administrator appointed to oversee the settlement of the estate.
Next, the executor’s main duties are to settle the estate of the individual that died. In Tennessee, this would include admitting the Will to probate. This is a process where you physically file the original Will with the court to start the process of settling the estate. In addition, the executor’s other main duties include paying all the valid debts, filing a detailed accounting of all of the assets of the estate, and distributing the proceeds of the estate according to the wishes of decedent (the individual who died).
In addition, an executor has what is called a fiduciary responsibility. What this means is that the executor has a duty to oversee all of the assets as a custodian with the utmost care. What this means is that an executor cannot remove assets from the estate for their own personal benefit. In addition, the executor cannot remove assets from the estate for any other purposes either without the court’s express authorization and consent. Failing to uphold this duty could result in the executor being removed from the position and a new executor/administrator appointed.
Finally, an executor may have to submit a bond to the court. However, when a Will is involved a bond is usually not necessary as the executor is usually a trusted family member and the Will specifically provides that the necessity of a bond being submitted is waived.In summary, an executor is required to submit the Will to probate, file a detailed account and inventory of the assets, pay the valid debts, pay the taxes, obtain releases from TennCare and the Department of Revenue, and distribute the remaining assets to the beneficiaries named under the Will. In most cases, this process lasts anywhere from six months to two years or more.