I’m the executor – What do I do now?

This is the first post in a series discussing estate planning and estate administration.

I’m the executor in my mom’s will. What do I do now?

After a loved one passes away someone needs to take charge and begin the process to transfer the assets of the estate to the proper parties. If you have a valid will or trust the property will be distributed as provided in those documents. If you don’t have a will you have what is called an “intestate” estate and your property will pass to your heirs as provided under Illinois law.

Depending on the total value of the estate, what kinds of assets there are, and how each asset is owned the process to transfer these assets to the proper person can look very different. If the total value of the estate is under $100,000.00 and there is no real estate then the property can pass by a procedure using a “Small Estate Affidavit.” This document is a sworn statement by the person signing about the details of the estate (i.e. what property was owned, debts owed, and how the assets are going to be distributed.) This can be a very straightforward process and it is possible to settle the estate quickly.

Some assets in an estate will pass to the beneficiaries as a matter of law based on how the asset is owned or based on a designation on the asset. For example, if a husband and wife own their home together as “joint tenants” or “tenants by the entirety” when the first spouse passes away the second spouse automatically becomes the 100% owner of that property. Other examples of assets passing automatically when the owner dies include life insurance policies and CDs that have a “pay on death” designated. Usually the company or bank that holds these assets has a procedure to follow in order to prove that the owner has passed away and confirm the identity of the beneficiaries.

When using a Small Estate Affidavit is not an option a probate estate must be opened in order to transfer the assets in the estate. Someone who has an interest in the estate (if there is a will usually the person named as the executor; if there is not a will usually the nearest relation to the person who has passed away) will file a petition with the Circuit Court of the county where the person lived. The Court will appoint an individual to be the personal representative of the estate. This person is responsible for collecting all assets of the estate, notifying all creditors that the person has passed away, following any specific directions in the will, and making the distributions of the estate. Creditors are given six months in which to file a claim against the estate so that is the minimum amount of time it can take to administer a probate estate. Some estates, depending on the complexity of the property owned and complexity of the family situation can last for years. Depending on the situation this administration takes place with varying degrees of court supervision. Some estates file only an initial inventory of the assets and a final report to the court while some estates must file detailed accountings and get court approval before it sells any assets at all.

So what should you do after a loved one passes away? The first thing to do is gather as many estate planning documents and financial information and make an appointment with an attorney. Based on an initial review of these documents the attorney should be able to tell you with reasonable certainty what steps need to be taken in order to administer this estate. He or she will explain what steps need to be taken and then assist the personal representative with the administration of the estate. The attorney’s role can be as limited as preparing a small estate affidavit to as involved as fully litigating a contested estate.

Contacting the attorney that prepared the will or other estate planning documents is a good place to start your search for an attorney, but the attorney represents the personal representative so that person needs to be comfortable with whoever the attorney is. Managing the administration of a loved one’s estate can be stressful. Your attorney should be able to explain the process to you and answer any questions you may have.

Andrew O. Mays - andrew@mwa-title.com

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