Like most things in the law, it depends. Although you may have been nominated to be the executor of an estate in a person’s will, you cannot serve as an executor until the will is admitted to probate and you are appointed executor by the probate court.
When a person dies with will, the first step is always to obtain the original will and file it with the clerk of the circuit court where that person resided at the time of their death. Even if no probate estate is ultimately opened, all wills need to be filed with the court.
Small Estate Affidavit
Whether or not probate is required depends on the size and makeup of the deceased person’s estate. If the estate does not include real estate and is valued at less than $100,000, then the estate can likely be fully administered with what is called a small estate affidavit. By executing a small estate affidavit, you will be able to transfer any property owned by the deceased person – including bank accounts, stock certificates, and other property – to the heirs or beneficiaries of the estate.
If probate is required, then you will need to hire an attorney to represent you, as executor, in the probate court. (For more on that, click HERE). Once the will is admitted to probate and you are appointed executor, your job will be to gather all of the assets owned by the deceased, provide claim notices to all potential creditors, notify all of the deceased’s heirs that the will has been admitted, and otherwise represent the interests of the estate. This may include initiating lawsuits to pursue causes of action that the deceased may have brought during her life or defending against claims that a creditor may bring against the estate. (What is probate? Click HERE).
Once a will is admitted to probate and the requisite notices are provided, creditors will have six (6) months to bring any claims against the estate, and heirs or beneficiaries will have six (6) months to contest the validity of the will. If no claims are brought, then your job will be to pay all just debts owed by the estate and distribute the assets according to the terms of the will.
In carrying out your functions as executor, you will owe certain duties of confidence or trust – “fiduciary duties” – to the beneficiaries of the estate. These include a duty of care to manage the assets of the estate according to Illinois law and the wishes of the deceased person, as expressed in her will, with the highest degree of fidelity and good faith; a duty of impartiality to treat all beneficiaries equally, not favoring one over another; and a duty of loyalty, which requires you to act solely in the interest of the beneficiaries and not in your own personal interest.
Breach of Fiduciary Duty
If you fail to comply with these legal duties, you could open yourself up to being sued for breach of fiduciary duty. If such a suit is successful, you could ultimately be required to pay damages, including attorney’s fees, out of your own pocket. Therefore, it is important to retain an experienced attorney to guide you through the entire estate administration process.
Matthew Hess has years of estate administration and litigation experience and will help guide you through the estate administration process with efficiency and compassion. Contact Hess Law Firm today by telephone, email or by completing an online client intake form HERE.