I am named as Executor in a Will – Am I Required to Serve?
If you have recently experienced the death of a loved one, you may be trying to get their affairs in order. That might include looking through their documents to see whether they had a will and determining how their assets should be distributed now that they have passed away. If you do find a will, you may be named as the executor of that will. Alternatively, if there is no will, you may have heard that you can qualify as the administrator of the estate in order to have the ability to manage the assets in the estate.
In order to serve as an executor or administrator of an estate, the person wishing to qualify must make an appointment with the probate clerk for the city or county in which the decedent lived at the time of their death. At the appointment, you will be required to disclose information about the decedent’s assets and take an oath pledging to fulfill your duties as executor or administrator. You may be required to pay certain taxes or filing fees depending on the value of the estate.
Many people think that if they are named the executor of a will, or if they are the next of kin to someone who does not have a will, they are legally required to go down to the courthouse and qualify as executor or administrator. However, this is not the case. Anyone can decline to serve as executor or administrator in favor of someone else or can simply refuse to qualify at all. In fact, there are many situations in which an estate administration attorney might recommend that you not qualify as the executor or administrator of an estate.
The Estate Is Insolvent
When you qualify as the executor or administrator of an estate, you are taking on the responsibility of making sure the debts of the estate are paid in the correct order according to the law. Debts of the estate can include mortgages, credit card balances, medical bills, loans, and any other debts that the decedent may have had at his or her death. If the debts of the estate exceed the assets of the estate, then the estate is considered insolvent. If this is the case, then by the end of the estate administration process, there will be no assets for the heirs of the estate to inherit. In many cases, because there is no possibility of an inheritance for the heirs of the estate, it does not make sense for anyone to qualify as executor or administrator of the estate.
There Are No Assets in the Probate Estate
When someone passes away, they often own assets that will have to go through the probate process before they can be distributed, but they may also own other assets that are not part of the probate estate – often referred to as “non-probate” assets. Non-probate assets can include bank accounts with a beneficiary designation, accounts that were owned jointly with right of survivorship, life insurance policies with a beneficiary listed, or retirement accounts that had a beneficiary designation on them.
Non-probate assets can be passed directly to their designated beneficiaries without the need for an executor or administrator to transfer the assets. For that reason, if all of the assets of the decedent are considered non-probate assets, it may be unnecessary to qualify as the executor or administrator of the estate.
The most important thing to remember is that, just because you are named in someone’s will or you are the next of kin of someone who passed away, it does not mean that you are legally required to qualify as the executor or administrator of an estate. Unfortunately, once you qualify and take on that responsibility, it can be very difficult to resign from that position without legal consequences. All too often, clients come to an estate administration attorney only after they have qualified. It is always best to seek the guidance of an experienced estate administration attorney before your appointment with a probate clerk.
Ask Kit Kat: Beagle Brigade
Hook Law Center: Kit Kat, what can you tell us about the beagle brigades at many US airports?
Kit Kat: Well, this is a cute story! My parents first encountered a fruit-sniffing beagle at the Honolulu airport in 1999. They were travelling back from Honolulu to Norfolk after a cruise around the Hawaiian Islands. Entering Hawaii, it had been clearly announced to bring no fruit into the islands, but no one had said anything about bringing fruit from Hawaii back to the mainland. My parents had a lovely fruit basket in their stateroom, all wrapped in clear plastic wrap, which had never been touched during the cruise. So my mom placed it in her carry-on item. Sure enough, a friendly beagle started nosing around the bag, and my mom was told to discard the fruit before boarding their plane. She was so embarrassed!
Anyway, fast forward to 2019. Atlanta’s Hartsfield-Jackson Airport and Chicago’s O’Hare Airport added beagles to their surveillance program as of mid-March. Beagles are already on the job at other border entry points across the US and abroad. Their job is to sniff out parcels or bags carrying meat and plant products. Such items can carry insects or other small pests which could hurt plants and animals in the areas to which the traveler is going. The Mediterranean fruit fly is one such pest which can severely damage citrus groves. Pork can carry African swine fever, so meats are searched for, too.
Beagles were selected for the task, because they have incredible powers of detecting different scents. Also, beagles are non-threatening, even friendly. The newest members of the beagle brigade are Chipper, Marlee, Chaze, and Cardie. They will serve in Atlanta and Chicago, and they all came from shelters. Marguerite Stetson, a Customs and Border Patrol agent who trained Chaze, said, “We try to utilize the dogs that are out there are already looking for a home and a job.” Sounds like a great plan to me! (Trisha Ahmed and Saeed Ahmed, “A brigade of beagles helps the US save billions at America’s busiest airports,” CNN, March 15, 2019)
Emily A. Martin
757-399-7506 | 252-722-2890
Emily A. Martin is a Shareholder of Hook Law practicing in the areas of elder law, estate and trust administration, estate planning, asset protection planning, litigation and dispute resolution, guardianship and conservatorship, long-term care planning, special needs planning and financial planning. To date, Ms. Martin has overseen over 100 guardianship and conservatorship matters. In addition to being admitted to the Virginia State Bar and North Carolina State Bar, she is licensed to practice before the Department of Veterans Affairs. Ms. Martin is a member of the National Academy of Elder Law Attorneys and Virginia Academy of Elder Law Attorneys. She is a graduate of the University of Mary Washington and Regent University School of Law. Prior to joining the firm in 2018, Emily worked as an estate planning and elder law attorney in Virginia Beach for several years.
- Elder Law
- Estate & Trust Administration
- Estate Planning
- Asset Protection Planning
- Guardianship & Conservatorship
- Long-Term Care Planning
- Special Needs Planning
- Financial Planning