What to Expect When Qualifying As an Executor or Administrator of an Estate
When a loved one passes away, often the relatives of the deceased are tasked with the difficult responsibility of wrapping up the estate. While it is possible for an estate to avoid probate if all of the decedent’s assets are designated directly to a beneficiary or to a trust, more often than not, there are assets in the decedent’s estate that require that the estate go through the probate process. Many people are under the impression that if they have a will, their estate will avoid the probate process. Unfortunately, that is not always the case. In many states, if assets do not pass directly to someone else through a beneficiary designation, transfer on death/payable on death account, or joint ownership, then the asset must go through probate – even if there is a will.
Do I have to qualify if I’m named as the executor?
Often, clients believe that if they are named as the executor of a will, they are required to serve in that role. However, if there are no assets to pass through an estate, then no one needs to qualify as a personal representative, even if there is a will. Additionally, if an estate has a great deal of debt or if there are other concerns about the assets, it may not always be advisable for you to qualify. An experienced estate administration attorney will be able to advise you as to whether or not you need to qualify. If you are handling an estate, it is important to meet with an attorney beforeyou qualify as a personal representative to make sure it is legally advisable for you to serve in that role and if it is necessary to do so at all. Once you qualify, it can often be difficult to get out of the responsibilities associated with serving as a personal representative.
Do I need an appointment?
Once you have met with an attorney and you know for sure that it is necessary for you to qualify as the personal representative of an estate, you will need to make an appointment with the probate clerk’s office in the city or county of which the decedent was a resident when they died. Court clerks do not accept walk-ins, so you will need to make an appointment well in advance. Once you arrive at the courthouse, it is important to be aware of the rules of the court. Most courts do not allow cell phones or other electronics, so all of the documentation and information you need should be printed out in hard copy format.
What do I need to bring?
When you arrive at the appointment, the clerk will likely ask you for a variety of documents, including the following:
- A valid, unexpired photo ID
- A certified copy of the death certificate
- An original will, if there is one
- Information about the decedent’s assets as of the date of their death, to the extent known
- Information about the decedent’s heirs and beneficiaries listed in the will
If there is a will, you will be qualifying as the “executor” of the estate. If there is no will, you will instead be known as the “personal representative” of the estate. Additionally, it is important to note that you must bring the original will to the probate appointment. If you do not bring the original will, the probate court will not allow the qualification to go through without an additional court hearing.
If there are assets in the estate, the court will require that the personal representative post a surety bond equal to the value of the assets in the estate. The personal representative must qualify for this bond based on their own credit history, and arrangements must be made for a bondsman to be present at the qualification appointment.
What will happen at the appointment?
At the probate appointment, you will complete and sign paperwork regarding the assets in the estate, the heirs of the estate, and information about the decedent. Upon the completion of the paperwork and after taking an oath, you will receive a certificate of qualification. This is the official document that gives you the authority to act as the decedent’s personal representative. With this document, you can access the decedent’s accounts and take the necessary actions to administer their estate.
Of course, the qualification appointment is only the beginning of the probate process. Without the proper guidance, administering an estate can be daunting. In order to ensure that the estate is administered correctly and to avoid any personal liability in your part, it is always a good idea to work with an experienced estate administration attorney. Not only will the attorney be able to advise you as to whether you should qualify, but they can also assist you in completing paperwork, make arrangements for the bondsman to come to the appointment, walk you through the qualification process, and assist you with all of the probate documents that must be completed after the qualification process is over.
Ask Kit Kat: Thai Turtles Thriving
Hook Law Center: Kit Kat, what can you tell us about turtles in Thailand that are thriving during the pandemic?
Kit Kat: Well, I am happy to report, at least, there are some good things happening as a result of the pandemic. According to the Phuket Biological Center, the number of rare leatherback sea turtles which are coming to the beaches to build nests is at a 20-year high point. With no tourists to interrupt them, they are successfully building nests, the prerequisite to producing turtle eggs. According to Kongkiat Kittiwaranawong, director of the Phuket Biological Center, “If we compare to the year before, we didn’t have this many spawn, because turtles have a high risk of getting killed by fishing gear and humans disturbing the beach.”
Leatherback turtles are the world’s largest species of sea turtles. Worldwide, they are considered vulnerable, but in Thailand they are considered endangered. Prior to the coronavirus pandemic, without the option of using beaches to build their nests, they resorted to other places to nest which were not as ideal.
Other animals around the world may not know the reason for the human retreat, but they seem to be enjoying it. Wild boars have wandered into inhabited areas in Haifa, Israel. Fish and swans have reappeared in Venice’s canals with no competition from boats. Goats in Wales have been known to march right into town centers since streets are deserted. All are in for a surprise when things eventually return to normal. However, it is nice that some are enjoying the pandemic, because most of the human population is not! (Zack Budryk, “Rare turtles are building nests on empty Thailand beaches during coronavirus,” www.thehill.com, April 20, 2020)
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