Three Ways An Executor Can Stay Out Of Trouble

Estate probate is a process. Your job as executor is straightforward: locate all the assets and debts, sell what property can be sold, use the money to pay all the confirmed debts, distribute what is left over, and file a tax return. By straightforward, I do not mean easy. The ease of settling an estate will depend on three things:

1. how much money is involved
2. the type and location of the assets and debts
3. how well the family gets along.

Executors and Estate Administrators (henceforth referred to only as executors) are not immune to the conflicts; indeed, they are often the target. But, executors take heart: you don't have to make every member of a quarrelling family happy. By your appointment as executor, you receive all legal authority to act on behalf of the decedent in matters pertaining to closing out the estate. Whether the heirs like it or not, the decisions are yours to make. You were placed in this position of trust by the court. Executors are held to what is known as the "reasonable person" standard: the executor owes the estate a duty to behave as a reasonable person would under the same or similar circumstances. Your obligation is to act honestly and prudently and execute your duties in a timely fashion. As long as you don't violate that trust, the court will likely support your actions.

If challenged, you need to be able to provide evidence as to when and why you made a certain decision or performed a certain act. The best way to provide evidence is to keep a contemporary record of your actions. If a legatee claims that a conversation with you never took place, it helps immensely to be able to pull out your journal and say "according to my written record we spoke on June 30 at 2pm; we discussed XXX and you said XXX". It’s doubtful that anyone else will be taking notes; the fact that you are helps establish your conscientiousness and credibility. To establish a good contemporary record, do the following:

1. Keep track of your phone calls and conversations. When you make a call, write down the details. When did you call? What did you discuss? What was the substance of the conversation? What action items resulted from the conversation?
2. Keep all the ancillary papers that you acquire in the execution of you duties; not just receipts, but bank & investment brochures, bills of sale, and repair estimates; you never know when you may need to explain why you chose a particular bank, repairman, or investment.
3. When you conduct estate business face-to-face with anyone, take notes.

Remember, executors: you don’t have to keep all the family members happy, you just have to keep the Judge of the Probate Court happy. His Honor is a busy man, and if you have kept good records, acted prudently, and kept to the schedule he will be happy.