What Does an Executor Actually Do?

executorWhen someone has a will drawn up and notarized, detailing what will happen to all their property after their death, they will usually specify in the document who will act as the executor of the will. If the document does not specify an executor, the court will appoint one.

But what does it even mean to be the executor of someone’s will? What, exactly, does that job entail?

Essentially, the executor’s job is to make sure the will is carried out as it is written. The assumption is that the will represents the intentions of the deceased at the time of their death – or at least the last time they were sufficiently mentally fit to decide what should happen to their possessions at the time of their death. The executor is tasked with fulfilling those wishes.

File the Will

The first thing the executor needs to do is file the will in the probate court of the county where the deceased lived. If they did not live in Illinois, then the will must be filed in the probate court of the county in which the deceased’s real property (such as land, a house, condo, etc.) is located. If they did not have any real property, then it needs to be filed in the county where most of the deceased’s personal property is located.  Once the will has been filed, the probate court grants the executor the powers of executor of the will, which allows them to fulfill the rest of their responsibilities.

Notifications

The executor is also in charge of notifying the heirs and legatees of the will that the document has been filed with the probate court – the legatees (also known as beneficiaries) are those listed in the will to receive something, while the heirs are those who would inherit the estate in the absence of a will.

Conduct Inventory

Under the Illinois Probate Code, an executor has 60 days from the time they become executor to conduct an inventory of the estate. The inventory must list all the real estate, personal property, and money owned by the estate.

Defend the Will

Once the heirs and beneficiaries have been notified that a will has been filed, they have 6 months from the time the will has been filed to challenge the validity of that will.  If the court finds the will invalid, the executor would be the one to file an appeal on that decision, if they decide to do so.

Manage the Estate

Before the will can be executed (and/or while it is being contested) there may still be bills that need to be paid on behalf of the estate. For example, if any real estate is included in the will, property taxes and/or mortgage payments may need to be made before the property is transferred to the ownership of the heir or legatee. The executor will be responsible for using funds and assets from the estate to make such payments, which is why it is of the utmost importance to assign an executor who can be trusted with this responsibility.  The executor has a fiduciary duty to the estate and the heirs and legatees to maintain the estate assets until such time as they can be distributed in accordance with the decedent’s wishes.

If you haven’t yet had a will drawn up for your estate – or you want to revise an existing will – you need a law firm you can trust. We can help you draft an air-tight will to ensure all your property and assets will go where you want them to go.  If you have been named the executor of an estate, we can also help you fulfill your duties in a timely, cost-efficient manner.

The attorneys at Sherer Law Offices have been providing legal representation for real estate cases, criminal cases, and all types of family law for more than 25 years. Our experienced divorce attorneys will take the time to really listen to your unique situation so that they can plan strategies that can best protect your best interests. 

What to Do When an Executor Fails to Carry Out the Will

carry out the willAn executor’s job is to carry out the will, meaning he or she will execute the will and handle the estate of the deceased by carrying out their wishes. This can include paying debts and taxes and distributing the assets to the beneficiaries in accordance to the instructions of the will. It is the responsibility of the of the executor to do these things in a timely manner, and act in the best interest of the beneficiaries.

But what happens if the executor isn’t doing their job? Can they be removed from their position? There are many things you should do if you find that the executor isn’t doing their job properly.

Know the Timeline to Settle an Estate

When a loved one passes away, you probably start to wonder how long it takes between the time the will is read and when you will get your inheritance. It depends on how complex the estate is, and the process can take anywhere from a few months to a few years. The executor can only disperse the assets of the estate after the property is evaluated and all the debts and taxes have been paid. The executor can be held personally liable if the inheritances are paid first and there isn’t any money left to cover debts and taxes.

Determine If You Have a Case

You should first try talking to the executor about your concerns. If that doesn’t work, you may have to take legal action.

To have an executor removed from an estate you need to be able to show that they are not living up to their responsibilities of their job or that they are doing something that isn’t legal. The court may remove an executor for the following reasons:

  • They are no longer eligible because they have been convicted of a felony after being named executor
  • They are no longer suitable because they have a conflict of interest
  • They have failed to carry out the wishes of the deceased or they haven’t done anything at all
  • They mismanage the estate by stealing from the estate or wasting assets

The executor must commit a serious infraction for the court to act. Taking a long time to settle the estate is not considered a serious infraction on its own. It must be in addition to one of the examples above. In most cases, you must wait a little longer to get your inheritance.

Seeking Legal Recourse

If you believe that the executor is not living up to their duties, you have two legal options: petition the court or file a civil lawsuit.

Beneficiaries can petition the court to have the executor removed from their positon if they can prove they should be removed for one of the reasons listed above. The court will have a hearing where the parties involved can tell their side of the story. Afterwards, the court can remove the executor and appoint another one if they find just cause.

Your other option is to file a civil lawsuit against the executor if you can prove that you have suffered due to their actions, or lack of actions. For instance, this would be an option if the executor has stolen money or failed to protect the assets of the estate. There is always a chance you will be able to settle before ever seeing the inside of a courtroom.

No matter where you are in the process of settling an estate, you need to speak to a qualified estate planning attorney if you have any concerns at all. At Sherer Law Offices, our attorneys will advise you and guide you as to what to do if you find yourself in this difficult situation.

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How Does the Probate Process Work?

Gavel and Small Model House on Wooden Table.The probate process in Illinois is a legal procedure supervised by the court that is sometimes needed after the death of a loved one. It is used to make it absolutely clear who will inherit the property of the deceased and to make sure that all of their taxes and debts are paid. The executor of the estate usually handles probate. This person must prove in court that the will of the deceased is valid. They must identify and take inventory of the assets, have the assets appraised, pay the taxes and debts, and distribute what is left as the will dictates.

Is Probate Necessary?

Whether probate is required or not really depends on what assets there are and how the deceased person held the title to those assets. The validity of the will does not necessarily influence the need for probate. Usually, a formal probate hearing is required in Illinois if the deceased person had sole ownership of assets, and if all of the assets combined are worth more than $100,000.

There are some assets that do not need to go through probate, including:

  • Assets that are held in trust,
  • Assets that are owned jointly,
  • Assets that are subject to beneficiary designation,
  • And real estate that is subject to a transfer-of-death deed in Illinois.

Affidavits for Small Estates

When the total value of an estate is less than $100,000 and does not include any real estate, a formal probate hearing is not required. Whoever inherits the estate is able to use a simple affidavit (sworn statement) to claim the inheritance.

A standard affidavit is a few pages long and all you have to do is fill in the blanks. You just need to provide the basic information about the person who passed away and state that there is no probate hearing in process and the funeral expenses have been paid in full. It must also say if there was a will. If there is a will, you must provide a copy along with your affidavit.

Formal Proceedings for Probate in Illinois

Probate cases in Illinois are handled by the Circuit Court in the county where the deceased person was living. The executor of the estate (as named in the will) is responsible initiating the probate process. If a will does not exist, someone will have to take responsibility and ask the court to appoint that person as “administrator” of the estate. The administrator will then do the same job as the executor.

To begin probate, the executor files the will with the court. If necessary, a probate case is opened by filing the appropriate documents. Generally, the executor hires a lawyer to draw up and file the proper papers. A notice about the hearing has to be sent to all the people named as heirs in the will. To inform creditors, a notice is published in the local paper.

Unless there is a problem with the will, which is a rare occurrence, the court will submit the will to probate and the person named in the will is then officially appointed as executor. The probate process gives the executor authority over assets. Most executors are granted “independent administration,” allowing actions without prior court approval. If the heirs are fighting, however, then “supervised administration” may be enforced and the executor must get court approval before any action is taken.

Debts and Assets

During probate, the executor has to take inventory of estate assets and safeguard them. It is sometimes necessary for the executor to sell some assets. The executor is responsible for taking assets or the money from the sale of assets to pay debts, such as funeral costs. The executor must also inform creditors of the probate case. The creditors have six months to file a claim. If they miss the deadline, they don’t get anything.

Tax Requirements

An estate in probate is taxable and separate from the person who passed away. The executor has to obtain a taxpayer ID number from the IRS for the estate. This is used to report income and deductions during the estate’s administration. Federal and state tax returns need to be filed for the estate.

For the year 2015, an Illinois estate tax return is due if the value of the estate is more than $4 million. A Federal estate tax might be due if the estate is valued at more than $5.43 million.

Contesting the Will

Probate cases are typically are finished in less than a year with the completion of all required paperwork. If the heirs fight about the assets, probate can take much longer and be much more costly. If a court battle erupts, it is usually over the execution of the will, confusing language in the will, claims from creditors, the executor being accused of wrongdoing, or someone claiming that the deceased person was influenced or did not have the mental faculties to write the will.

Estate Closing

In order to officially close the estate, the executor needs to file a final accounting document that shows how the assets were handled. It will list the assets, income that was generated by the estate, amounts paid for expenses and debts, any expenses paid for administration, and amounts that were distributed to heirs. The document will also show how the executor will distribute the rest of the estate property. When it is time to close the estate, the executor will submit a final report to the court and obtain receipts from the heirs who received assets.

When probate is necessary, the legal team at Sherer Law Offices can help you navigate the process and provide support if disputes arise. Plan ahead and hire an experienced probate attorney as soon as possible.

CONTACT Sherer Law Offices to schedule a legal consultation.

How to Get Your Affairs in Order

office tableMost people really don’t like to think about making a will. They don’t like talking about a DNR (do not resuscitate order). And they really don’t like to talk about planning a funeral. But it is advised that ALL people plan for these events, and when you live alone or become terminally ill, these items become even more urgent.

While dealing with the emotional stress and the medical decisions of a serious illness, you still have to manage other logistics. Though troubling, these issues really should be dealt with now so that you or your loved ones don’t have to deal with them later. Don’t let time run short. Get everything in order now, the way you want it.

The following is a list of items you will want to take care of to get your affairs in order:

Making Out a Last Will and Testament

Over 50% of the adults in the United States do not have a last will and testament. However, it’s necessary even if you don’t have anything to divide among your loved ones. Those who pass away without a last will and testament leave their family to deal with probate court while they are still grieving.

Drawing up a last will and testament may not be difficult for some individuals, but it is always best to consult an experienced attorney to help you write it. The cost for creating the will with proper legal documentation is sure to be less expensive than the mistakes that might otherwise result from trying to do it yourself.

Advance Directives

An advanced directive is also known as a living will. It dictates what you want done, or not done, when it comes to making decisions to prolong your life. This is where the DNR comes in. It is a very important and legally binding document that should be properly prepared to state your wishes.

Durable Power of Attorney for Health Care

When you designate someone to be your power of attorney for health care, this does not mean that you give up any power to make your own decisions. But there may come a point when you cannot speak for yourself. The person entrusted to speak on your behalf should have a copy of your advance directive and know your specific wishes regarding the kinds of lifesaving measures you do and do not want. Your lawyer can help you draft this document.

Financial Power of Attorney

Creating a durable power of attorney for your finances is highly recommended for everyone with income or property. It is particularly important if you are worried that looming health problems could impair your abilities to manage your own financial matters.

A durable power of attorney will make sure that someone you trust will be assigned to manage the numerous practical, financial responsibilities that are expected to arise if you become unable to handle them yourself. For example, deposits must be made to the bank so that bills can be paid. Someone must also handle your benefits and insurance paperwork. Other matters that will likely need attention include managing investments and handling repairs to property. A durable power of attorney, in most cases, is the most highly recommended solution for taking care of such financial matters.

Instructions for Your Funeral or Memorial Service

When a loved one passes away, the grieving family members must often think very quickly about funeral plans. In the immediate aftermath of death, it can be very difficult to focus on these details. When getting your affairs in order, sit down with someone you trust and write down all the things that are important to you about your funeral, memorial service, and whether you want to be buried or cremated. You may also enlist the help of a funeral home of your choice to get these things prepared.

This will save your loved ones the stress of having to make these types of decisions themselves. And when they know that your wishes are being fulfilled, it can encourage a greater sense of peace about your passing.

The experienced attorneys at Sherer Law Offices provide sound legal advice for getting your affairs in order.  CONTACT our office today for a legal consultation.

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