I was named as an Executor. Do I really need a lawyer?

Hook Law News | May 4, 2023 | Letha Sgritta McDowell

This is a question I receive often. Not just from clients but from friends and family too. My answer is always the same . . . “it depends.” Someone may list you as an Executor in their will but you don’t actually become the Executor until you take the original will (or mail in certain places), a death certificate, some identification, and a check to the appropriate court and a court official accepts the will as being a valid original will and issues you a court prepared document which states that you are officially the “Executor of the Estate”. Thus, an Executor has little to no authority to act as Executor until they have been appointed by a court.

It’s also important to note that, in many cases, when a deceased person has done appropriate planning, no Executor is actually needed. An Executor has authority to take control of property of a person who has died but that property must have been in the deceased person’s sole name – meaning no joint owner and no beneficiary. In addition, in both Virginia and North Carolina, real estate is not part of a decedent’s estate (more on that in a later post), so really, the only thing that would practically be under an Executor’s control are personal property (i.e. money or investments) and tangible personal property (i.e. “stuff). For example, if I die owning a home, a checking account which has a “POD” (payable on death) designation, and my IRA which names my son as the beneficiary, then, even though I have a will that names an Executor, the Executor never needs to qualify and thus no one ever needs to become the Executor. Why? Real estate passes to the beneficiary named in the will but without the need for probate. The checking account gets paid to the named beneficiary automatically – the POD designation directs the financial institution that holds the account to pay whatever is in the account to the named beneficiary. And the IRA pays to the named beneficiary. Thus, there really isn’t anything in what we legally determine is the estate.

So, what does this have to do with needing a lawyer?

It is a lawyer’s job to explain to an Executor (and sometimes the beneficiary) what is technically in an “estate” and what their duties are as Executor. More critically, a lawyer should help a named Executor determine whether she really needs to become the Executor. It is not the job of a court official (usually someone in the probate office) to provide legal advice about whether a named Executor actually needs to become the Executor. Instead, the court official only needs to do what the Executor asks. So, if an Executor takes a will to a court and says something like “I need to be the Executor of this estate”, then the court officer will take the original will, a death certificate, some identification, and check and will issue the Executor the appropriate court document. In addition, the court official will probably provide them with some guidance on what they need to file and when. While there isn’t anything wrong with that exactly, if the situation is like the one I described above, the Executor now has work to do that wasn’t otherwise required. Having a lawyer analyze that in advance saves the Executor time and money.

If the situation is different than the one described above and named Executor truly does need to become the Executor, then having a lawyer help with filings and the process of administration can save the Executor time and money because the attorney will make sure that the filings are put together correctly and in the way the court wants to receive them. In addition, an attorney can provide guidance on other issues that are associated with a decedent’s estate, such as decedent’s final tax returns, fiduciary income tax returns for an estate, and how to make distributions to beneficiaries. Thus, having an attorney can save time and money.

Hook Law in the News

Emily Martin, Attorney, Shareholder

Emily Martin named Editor of the Virginia State Bar Trust & Estate Newsletter

Join us in congratulating Emily Martin, on her first edition as Editor of the Virginia State Bar Trust & Estate newsletter 👏 We’re excited to see the great work that she’ll do in this new role. Well done, Emily!

Letha McDowell featured on MarketWatch

Check out this recent MarketWatch article which Letha McDowell discusses a wife trying to pick up the pieces after her ill husband didn’t file taxes for several years. See what she had to say.

North Carolina Ribbon Cutting Ceremony & Networking Event

Help us celebrate our new Hook Law office in Southern Shores! Our Ribbon Cutting Ceremony & Networking Event will include appetizers, beverages, swag & giveaways. Join us!
RSVP by May 12th to [email protected] or call 757-267-9586.

Come help us celebrate!

Upcoming Seminars

Senior Lifestyle Real Estate Seminar

Jennifer Rossettini will be presenting that the Senior Lifestyle Real Estate Seminar hosted by the Berkshire Hathaway Homeservices TowneBank on May 17th from 11:00 a.m. – 1:00 p.m. Jennifer will present valuable information on why you need an estate plan to protect you, your family and assets. The seminar is being held at the TowneHall, 137 Mount Pleasant Road, Chesapeake, Virginia.

For more information please call (757) 746-5814 or (757) 582-0900.

Happy Hour & Learn

Who knew wine and cheese paired so well with estate planning? Letha McDowell will be presenting our first-ever Happy Hour & Learn! The event is being held at the beautiful community of Acclaim at East Beach on May 23rd from 5:30 p.m. – 6:30 p.m. Attendees will receive a complimentary consultation gift certificate. Acclaim is located at 4801 Pretty Lake Avenue, Norfolk, Virginia.

Registration is required, and space is limited, please RSVP by calling Sara Travis at (757) 267-9586 or [email protected].

Crowd Favorite! Pets Corner, ask Dan & Riggs

Dan & Riggs Enjoying the Good Life

Hook Law: Hey Dan and Riggs? My human managers keep taking me to the ocean and their backyard pool to see if I want to get in. I’m interested but a little nervous – is it OK for me to get in?

Dan & Riggs: Hi Reader – your humans sound like fun – it’s great that they are giving you the opportunity to swim. Swimming is good exercise and can be great for older dogs with arthritis and young puppies who like to play. However, you are right to be a little nervous. Here are a few things to remember:

• Not all dogs can swim – some have size and shape issues that prevent them from swimming. Take it slow at first.
• Dogs can’t float – that means even great doggie swimmers and their humans need to pay attention to their activity and energy levels – if you tire out from swimming and aren’t close to the shore, then you could drown.
• Water temperature – the colder the water is, the faster you’ll burn energy. Given what we said about not being able to float, it’s critical to pay attention to the water temperature and your energy level.
• Dehydration – water play is lots of fun and really good exercise, but just like humans, dogs can get dehydrated too. Be sure that you have lots of water available if you are going to play in the water long. And don’t drink the ocean water – it will give you tummy troubles and your humans won’t be happy when they see the results.
• Sunburn – just like humans, you can get sun burnt too.
• Ear infections – it is impossible to keep water out of your ears when you’re swimming. Even that satisfying head shake when you get out of the water doesn’t do the trick. As a result, many dogs get ear infections after swimming. Make sure your humans keep a close eye on those ears.

Letha Sgritta McDowell

Attorney, Shareholder, CELA
757-399-7506 | 252-722-2890
[email protected]

Letha Sgritta McDowell is a Shareholder of Hook Law practicing in the areas of estate planning, elder law, special needs planning, estate and trust administration, asset protection planning, long-term care planning, personal injury settlement consulting, guardianships & conservatorships, and tax law. Ms. McDowell’s clients range from high-net-worth individuals with over $75 million in net worth to families with limited assets.

Ms. McDowell is a past President of the National Academy of Elder Law Attorneys and was named as a Fellow of the prestigious American College of Trusts and Estates Council (“ACTEC”) in 2020. She is certified as an elder law attorney by the National Elder Law Foundation (“CELA”) and Board Certified as a specialist in Elder Law by the North Carolina State Bar Board of Legal Specialization. Furthermore, McDowell is accredited to prepare and prosecute claims with the Department of Veterans Affairs.

Ms. McDowell is currently the chair of NAELA’s strategic planning committee, a member of the Board of Directors for the North Carolina Chapter of NAELA, and a member of the Board of Directors for the Purdue Center for Cancer Research. She is the former Chair of the North Carolina State Bar’s Elder Law Specialization Committee and is the former Editor-in-Chief of “Gray Matters”, the newsletter for the Elder Law Section of the North Carolina Bar Association. She is a consultant for InterActive Legal and has worked on several law and technology initiatives including IBM’s Watson project. Along with her experience practicing as an attorney, she has dedicated much of her time writing for national publications including, but not limited to: Wolters Kluwer, Wealthmanagement.com, the NAELA Journal, Trust & Estates Magazine and many more.

Practice Areas

  • Elder Law
  • Estate & Trust Administration
  • Estate Planning
  • Asset Protection Planning
  • Long-Term Care Planning
  • Special Needs Planning
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