What Does An Executor Do After Death?
Once there is a death there are a few steps that must be completed before an executor can perform their duties. Being nominated as executor doesn’t give a person any power as executor until the will is recorded, they have formally qualified with the clerk of the court where the decedent died, and a certificate is issued granting that executor formal authority under the will. Once all that is done then the executor is fulfilling the instructions under the will. Most wills are fairly uniform in what they instruct an executor to do. First they need to figuratively put their hands around all of the assets that are passing through the will. Then they pay all the debts, expenses, and taxes associated with the person’s death. Finally, they distribute the assets according to whatever instructions are in the will.
If an executor is doing all of this then they need to report to the court what it is they’re doing. This is most often associated with the probate process. In addition to doing all of those functions there are a series of forms that need to be filed at different points to complete the administrative process.
What Exactly is Probate?
There are several steps to the probate process. First is the validation of the will of the person who has died. Then the appointment of either an executor if one is named in the document or an administrator if there isn’t a will or no one was named in the will is willing to undertake the job being asked. Then you need to supervise who is ever appointed to do the job and make sure that they’re fulfilling the instructions under the will in terms of how the assets are to be divided and distributed or they are fulfilling the obligations under state law if there isn’t a will as to who is to receive the assets and how they’re to receive them. Essentially, probate is court involvement in the administration of a person’s assets.
What Factors Set The Stage For Probate To Occur?
There are several factors that need to happen before probate can occur. Most people believe probate to be the court supervision and the division and distribution of assets. This depends upon what assets were owned by the decedent and how they own them and what the value of those assets are. If all of the assets were owned jointly with a spouse or other family member in a survivorship capacity then there would be no need for any probate administration because all of those assets would pass according to the title ownership. Alternatively, if there are assets that were individually owned by the decedent, are not real estate assets, and the value of those assets are less than $50,000 then there would be no meaningful need for probate under the Virginia small estate act. Those assets can be divided and distributed under an affidavit basis that wouldn’t require any court filing or supervision other than the recording of the will.
For real estate assets, if there is no provision in the will for requiring the sale of the real estate, or if there is a specific reference in a will of who is to receive the real estate, or if a decedent dies without a will, then under those circumstances the recording of the will or the recording of a real estate affidavit would serve as a deed to transfer that property immediately upon the death of the decedent to whoever the heirs are under the will or under state law if there isn’t a will. There wouldn’t be any probate administration for that real estate. Alternatively, if under the will, the decedent directs that the real estate be sold and the real estate was owned individually by the decedent when that person died then that would trigger the probate administration and oversight of the executor selling that property and distributing the money according to the instructions in the will.
What Actually Happens During The Probate Process?
The steps that occur during the probate process begin once an executor qualifies. That triggers the requirement to file all of the forms required for that executor to complete the probate process. The first form that is filed in Virginia is an inventory of the assets because it’s not possible for the executor who qualifies to know exactly what the decedent owned and what the value of those assets are. The legislature in Virginia gives that executor a four month period of time after they’ve qualified to determine what the assets were and what they owned when they die. The purpose of the inventory is really to create a snapshot of exactly what the decedent owned and what it was worth when the person died. This notifies the court as to what it is the executor is actually administering.
After the inventory is filed, the next major filing is the accounting of the assets where the administrator or the executor has to detail all of the assets that have come under the control of the executor, all the debts and expenses that have been paid, and all of the distributions that have been made to the heirs according to the instructions in the will. In order to complete the administration, the administrator or the executor needs to show the court through this filing exactly where all the assets have gone. The assets need to have a zero balance in order for the executor to complete their job. For people that aren’t used to doing this type of administration there’s a lot of frustration involved in the accounting part of the process. This is because it’s not the same type of accounting that CPAs and other financial professionals associate with financial accounting.
The accounting work is presented to attorneys appointed by the court. These are lawyers, not accountants that are reviewing these documents. They need to be prepared in the way that the attorneys appointed want to see this information and they will continue to return these accountings to the executor until they are presented in the form that they want to see and that the accounting is down to a zero balance that they’re expecting to see. That can create frustrations and often does with layperson executors who aren’t used to this type of process.
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