ESTATE ADMINISTRATION

My mother just passed away; I am named as the Executor. What do I need to do?

Assuming you are named as your mother’s Executor, let’s just take it step by step. Things that need to be handled immediately:
• Secure the home: Take possession of the keys, and lock up the home. Arrange for a trusted friend to house-sit on the day of the funeral.
• Secure the contents of the home: If others have keys and you are concerned that personal possessions may “walk out the door”, then change the locks on the home.
• Pets: take custody, or arrange for someone to take custody of any pets. If indoor pets, they may remain in the home provided (of course) they are fed, watered and walked. You may also need to check to see if your mother made provisions for the pets in the will or trust.
• The funeral and burial or cremation.
• Hopefully, your parent will have already pre-planned and pre-paid for the funeral and burial. If so, you will simply need to let the medical professionals know who is to take custody of the body.
• If not, and if the family agrees on what is to be done, the funeral home will direct who signs the contracts. The estate will reimburse the payments (note: if there may be more debt than assets, best to be conservative since there is a limited payment to funeral and burial, unless someone is able to personally pay for the funeral and burial or cremation arrangements). In most situations, you have time to get through the funeral before anything else needs to be done.

Personal Belongings: Because families are spread out, it is often convenient for the family to distribute personal possessions after the funeral (and often before our appointment). This is fine, if all can agree and will sign a receipt confirming that they received what they are entitled to. If you are going to distribute personal property before you come in to see us, review the Will before the property is distributed. Be sure you know who is entitled to what. If you are unsure, do not distribute anything until we meet.

Note: in Virginia, it is legal for the Will to allow the testator to write a handwritten, signed list of personal items, and designate who receives specific items. Review your mother’s Will to see if there is a provision that allows this. If so, look for the list. If you find a list (normally it will be kept with the original Will), make several copies of it. Keep the original with the original Will, and do not mark on it. Those items, if your mother owned them at her death, must be given to the person named on the list. I suggest having everyone sign the form that is attached to this website titled “Tangible Personal Property Receipt” certifying that they have received the specific items they are designated on the list to receive.

If the family begins to quarrel over who gets what (“Mother said I could have her diamond ring” … “Since I gave it to her, I get it back”… “Since I am not employed, I should get more” … “That’s my childhood bed, so that’s mine”), postpone any distributions until we meet. And yes, I mean any distribution. Not one stick of furniture, not one earring walks out the door until we meet. Let the family know this is what the attorney is telling you to do. We don’t mind being the bad guy.

Do not begin distributing anything other than personal belongings until you have met with us. Done incorrectly, you may incur personal liability for paying debts out of order, or may be sued for fiduciary abuse if you favor one beneficiary over another.

The myth of the "Reading of the Will". There is a common misconception that the family must meet in the attorney's office, where the attorney will unseal the original Will, and read the Will to the family. This is a myth perpetuated by Hollywood, as a device to show the various emotions as a result of the provisions of the Will. I think (in most cases, anyway) it makes sense to distribute a copy of the Will to the whole family. In Virginia, the Will gets recorded at the Courthouse, and becomes public record. Anyone can review it.

Who’s in Charge? We have found a common misunderstanding about the responsibilities of the Executor. The Executor is responsible to do what the Will directs. The Executor is not to do what he or she believes the decedent wanted, but must do exactly what the Will directs. No more, no less.

What is the Probate Process? The Probate Process is the legal process of transferring assets owned by the decedent at the time of his or her death into the name(s) of the beneficiaries of the estate.

What does the Probate Process involve? There are several steps in the Probate Process. Generally, this process takes from six months to over a year depending on the situation:

• The first step is to find the original Will and any Codicils (amendments) and make an appointment to record it with the Clerk of the Circuit Court in your city or county.
• Take to the appointment the original Will, any original Codicils, your best estimate of what the decedent owned at his or her death, a list of the decedent’s family members, their ages and addresses, and your checkbook. At this appointment, you will complete and sign several legal documents, and will be formally appointed to serve as the Executor.
• After you are qualified, you should take your letter of qualification and open an estate account at a bank of your choosing. This is the account you will use to collect estate assets, pay any estate bills, and to eventually distribute the money from the estate to the beneficiaries.
• Within one month of your qualification you need to send a notice to all the natural heirs of the decedent that you have been qualified as the Executor and that they may (or may not) inherit. This should be done by certified mail.
• Within four months of your qualification you need to file an affidavit of notice with the Clerk of the Circuit Court stating that you sent out the notice to the heirs. You also need to file an inventory with the Commissioner of Account that details all the assets that the decedent owned at the time of his or her death and the values of those assets. Documentation proving the values of those assets will be required.
• Within sixteen months of your qualification you will need to file an accounting detailing all the assets that were put into the estate, all the bills you paid from the estate, and any preliminary distributions you have made to beneficiaries.
• If, before a year from the date of your qualification you have distributed all the assets to the beneficiaries, then the first accounting can be the final accounting. However, if you have not made a final distribution to the beneficiaries of the estate within a year of your qualification then you will have to file an additional accounting.
• Generally, it is wise to not distribute all assets from the estate within a year of the date of death because potential creditors have the right to make a claim on the estate within a year of the date of death and if you, as the Executor, have distributed all the assets before the claim is made then it is your responsibility to get the assets back to pay the debts of the estate.
• It is often smart to have a “Debts and Demands” hearing, as well as to ask the Circuit Court to enter an Order of Distribution. These are all ways to minimize your potential personal liability should creditors appear after you have distributed the estate.

How can we help you through the Probate Process?
• If you wish, you can retain us to fill out all the paperwork that is required to get you qualified as the Executor. If you are uncomfortable going to court by yourself, we can accompany you, or our Estate Administration paralegal may do so.
• We can also complete the inventory and the accounting(s), using the information you provide.
• There are also certain situations where going through the full probate process is not necessary. In certain circumstances you may not need to go through the probate process at all. In certain circumstances you may only have to sign some paperwork after 60 days to allow you to transfer the assets in the estate to the heirs. Alternatively, in certain circumstances, you may only need to file an inventory and then wait an additional two months and be done with the process without having to file any accountings. In order to let you know whether or not you will have to go through the entire probate process we will need to meet with you and evaluate the circumstances.
• In some cases families prefer to have professional Executors. In such circumstances we may be willing to qualify as Executor to settle the estate.

Our Appointment

Please bring copies of the following documents with you to our appointment:

1. Original Will, Original Codicil(s), Trust Agreements and any Trust Amendments, Memorandum regarding distribution of personal property.
2. Real Estate Deeds, appraisals or real estate tax bills
3. Divorce Decrees, Prenuptial Agreements, Adoption Papers
4. Two original death certificates
5. Life insurance policies
6. Most recent income tax return
7. Statements for bank accounts owned solely or jointly by the decedent showing their value as of the date of death (if you already have the statement).
8. The forms attached to this website titled "Estate Administration Worksheet" and "Estate Administration Checklist".

When we meet, we will discuss the steps necessary for proper administration. At the conclusion of our appointment, we will ask whether you want to retain us to assist further. If you do wish for us to assist you, you may retain and we will assist as much or as little as you prefer.