Probate Bootcamp: An Executor's Guide

What exactly happens when someone names you as the executor of their will? Far more than most people realize. In this enlightening discussion, attorneys Jane Dearwester and Haley Matson of McIntyre Elder Law pull back the curtain on the executor's role during their "Probate Boot Camp."

The conversation begins with a crucial concept many new executors don't fully grasp: the fiduciary duty. This legal standard means you're handling someone else's money with the highest level of care and responsibility. Jane and Haley walk listeners through the practical first steps every executor must take, from locating the original "wet ink" will to formally applying for appointment through the court. Even with a perfectly drafted will, the probate process requires court supervision and specific legal procedures.

Things get particularly interesting when the attorneys dive into the complications that frequently arise. Will contests from disgruntled heirs, allegations of undue influence, questions about testamentary capacity, and disputes over property distribution can transform a seemingly straightforward process into years of litigation. Drawing from their extensive experience in estate litigation, they share real-world scenarios where executors found themselves caught in family disputes while trying to fulfill their duties. The discussion covers executor compensation (up to 5% of estate assets), when to seek professional help, and how even simple estates typically take 6-12 months to settle.

Whether you're currently serving as an executor, have been named in someone's will, or are planning your own estate, this conversation provides invaluable insights into the probate process. Have questions about your specific situation? McIntyre Elder Law offers free consultations at their offices in Hendersonville, Charlotte, and Shelby. Visit mcintyrederlaw.com to learn more about probate and other elder law topics.

Episode Transcript

Jane Dearwester (00:03):
Hi there, I'm Jane Dearwester with McIntyre
Elder Law.
I'm joined today with ournewest attorney, Haley Matson.
Hi Haley, hi Jane, how are you?
Good, she's joining us fromCharlotte.
I'm in Hendersonville today,and today we're going to talk on
a topic.
The title of it for us isProbate Boot Camp, and we're

(00:23):
specifically here to talk aboutwhat executors need to know when
they have been designated as anexecutor in someone's will,
what they need to realize aboutwhat that role entails.
So it's a pretty important role.
In fact, you owe a fiduciaryduty to the estate when you are

(00:43):
qualified as an executor, whichmeans it's a higher standard of
care that you are dealing withsomebody else's money, much like
a trustee or like yourfinancial advisor or banker
handles your money.
That is a fiduciary, so it'ssomeone who's in a position of
trust.
So you're held to a higherstandard, mostly because you're

(01:04):
dealing with someone else'smoney and assets.
So your job as an executor isgoing to require you to collect
all the information about thedecedent's assets, so the person
who passed away hopefullyyou're close to them.
Most people appoint an executoras their spouse, their child,
somebody within their family,but it doesn't have to be.
It can be anyone that youchoose.

(01:26):
So you want to be able to getinformation about the decedent's
assets.
Another thing you need to do asan executor pretty quickly you
need to locate the original will.
You need to find not just acopy but the original wet ink
signature will and that's thedocument that you're going to
present to the clerk in NorthCarolina in the county where the

(01:48):
decedent passed away.
And so once we have that will,haley, what are kind of the next
steps for our executors oncethey found that will?

Haley Matson (01:58):
Sure.
So once they find that originalwill, they're going to go to
the courts, they're going tosubmit it.
They're going to be able toapply for their appointment as
executor.
So, even if the family memberhas a will, you still do need to
go to court.
You still do need to getappointed by the court as
executor.
Once you have that, you willtake an oath and you may be

(02:23):
required to post a bond.
Some wills will have it waived,otherwise they may ask you to
pay it.
It's usually not too much, soyou don't have to worry.
After that, you're going towant to notify any heirs in the
will and you need to dosomething called a notice to
creditors.
This notice is run for how manyweeks?

(02:45):
Three weeks, three to fourweeks, three to four weeks, and
it's usually published in alocal newspaper or by giving
direct notice to those creditors.
And you want to make sure thatyou do that and you want to make
sure that you don't miss doingthat, because that can be a
reason for why the will may havesome probate holdups.

Jane Dearwester (03:09):
Yeah, that could be a reason that creditors
you want to get that going assoon as possible as well, to
start that clock ticking for 90days and if there are creditors
that come forward, those claimscan be validated or denied based
on the timeliness.
But really publishing thatnotice to creditors what it's
doing is clearing title.

(03:29):
So a lot of times people comein for their estate planning and
say I want to avoid probate, soI want you to do a will for me,
and I say, oh well, the willdoesn't avoid probate.
The will is the guide throughprobate.
It tells us what to do, and sothat's part of it.
And so that's part of itGetting the creditors paid debts

(04:11):
, taking care of final taxes,filing accountings with the
court.
And there are issues that cancome up when you're an executor
of an estate.
There are ways that parties canchallenge the will and you are
stuck right in the middle ofthat.

Haley Matson (04:16):
So maybe I'll ask you, haley, to talk about some
of those situations where willcan be disputed or at issue.
Sure, I mean, oh man, we'veseen a lot here at McIntyre.
I mean we do a lot oflitigation for that.
They're usually called willcaveats.
Anyone disgruntled heir,somebody who thinks they deserve
something, somebody who's beendisinherited and knew they were
disinherited, they will come outof the woodwork and they will
contest the will and they can doit, like you said, for a number

(04:39):
of reasons.
Sometimes it's undue influence.
So if you've been disinheritedand you feel like maybe your
vengeful sibling was sayingthings about you to your mom who
passed away and that's thereason you can maybe bring
something for undue influence.
Lack of testamentary capacitySay, the person who wrote the

(05:03):
will was suffering from seriousdementia at the time, yet
somehow still signed a perfectlygood will.
That's also a reason to bring acontest or a caveat.
And additionally, there's alsosometimes where folks just want
a different part of the propertyor think that they were
supposed to receive a propertyand then never did.
They'll come in and they'll askus to find the property, then

(05:25):
try to get the property to them.
So there's a ton of things thatcan happen with that.

Jane Dearwester (05:31):
There really are a lot of ways and a lot of
litigation that boils up aroundwills and estates, for sure, and
I do full-time litigation forour firm, so I'm kept very, very
busy with people contestingwills and heirs disputing about
whether or not the executor isdoing their job and their
capacity.
Oh yes, I forgot about that one.

(05:53):
That one is big too To put thewill into effect to do what the
will says they should do.
A couple other just quickthings to remember.
An executor usually is entitledto compensation up to 5% of the
assets of the estate and anexecutor does not have to be
assisted by any kind ofprofessional.
A lay person can come in andserve as executor.

(06:15):
However, it may be important toretain professionals like a CPA
, an attorney or a real estateprofessional.
If there's real estate that'sflowing through the estate.
Again, you have a fiduciaryduty to do these things
correctly, and if you're not anumbers person, I would highly
recommend retaining counsel andor a CPA to deal with the

(06:38):
accountings that have to be keptup through the entire process,
and the process can takeanywhere from six to 12 months
to multiple years.
If it's a very complex estate,the estate may be open for a
number of years, so you're onthe hook for that the entirety
of the time until there is afinal accounting approved and

(07:02):
it's signed, sealed anddelivered with the court.
So just know that that goinginto it it might not be quick
and easy.
I haven't seen too many quickand easy ones, but that's
because I get the ones that kindof turn bad, but there
certainly are those that can bepushed through relatively easily
, especially when the will isvery clear about what needs to

(07:25):
be done.

Haley Matson (07:25):
It also helps when the executor like knows about
what's going on with thefinances.
I know in the Charlotte officewe've seen surprise accounts
come up which messes with thefinal accounting because the
executor doesn't know whatexists.
So taking inventory prior toany of this and kind of keeping
up with it can also speed theprocess along and make it easier

(07:47):
for everybody.

Jane Dearwester (07:48):
Oh yes, definitely so if you've been
named as an executor or ifyou're putting together your
will and trying to determinewho's the best person to name as
executor, please give us a call.
If you're listening to thiselder law report, we're offering
you a free consultation at anyone of our three offices We've
got Hendersonville, Charlotte.

(08:10):
Also have an office in Shelby.
We'd be happy to speak with youand for more information on
this topic, on probate or anyelder law and estate planning
related topics, please check outour website at mcelderlawcom.
We look forward to seeing yousoon.
Thanks, Haley.

Haley Matson (08:29):
Thank you Bye.