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BEARING THE BURDEN OF A PROBATE EXECUTOR

An Article by William A. Taylor (The Business Lawyer)

At the moment of death, everything owned by that person constitutes his or her “estate.” The law classifies these earthly possessions as either real property (real estate and real estate interests) or personal property (everything else).

When a person dies, their estate is managed by someone until all of the items are distributed. The person who manages an estate is called an executor (of a will), an administrator (of an estate without a will) or a trustee (of a living trust). Typically, these people, these estate managers, suffer enough stress for three lifetimes. The stress usually comes from relatives of the person who died.

This article sympathizes with those estate managers (who I will call “executors”); this article suggests how the awful stress arises and suggests ways to reduce that stress.

How Does the Stress Arise? The stress to be suffered by an executor usually comes from relatives of the person who died. These relatives make demands. They question every move. They want money now. They want to live in the estate property – rent free. They want to own the property, regardless of the wishes of the decedent. The executor becomes the focus of their unhappiness over the death; they take out their anxieties over their futures. But mostly, they want money, now.

Executors usually feel unsure of themselves. It’s not often that people suffer the death of someone close to them; it’s even less frequent that a person is asked to referee the distribution of a loved one’s lifelong possessions among an unruly mass of grieving relatives, each of whom feels particularly privileged about his or her relationship with the recently-passed person. These relatives (the heirs) immediately start to apply pressure on the executor, usually knowing exactly what to do (after a lifetime of growing up with the executor).
What the executor wants to do is tell their quarrelsome relatives where to go; but they can’t. They have to make business decisions and family relationship decisions under close scrutiny – all the while they themselves may be grieving their loss. Generally, executors don’t know if they have rights to protect themselves from heirs who could sue them. They feel as though they carry targets on their backs within the family and they feel all alone.

What’s the Antidote to the Stress? Executors do “good” a number of ways. Knowing that one is doing “good” helps dissipate the stress – but not much. In doing “good” they are often called upon to be the one adult in the group. Doing “good” might mean that there will actually be an inheritance, as when, quite, often there is a mortgage on the residence of the person who died. If nobody pays the mortgage, there will be no inheritance. The executor must save the day.
What Should the Executor Do? Rely upon the probate attorney.

  • In order to find out the legal remedies to the estate’s problems, the executor should work closely with and rely upon the estate’s probating attorney.
  • The executor should be very clear with that attorney about what is going on within the family.
  • The executor should use the attorney for protection from being overwhelmed by the confusion and stress being generated by family members.
  • The executor clear their intended acts with the attorney. Some of the things that seemed like such good ideas at the time sometimes have to be unwound. Clearing plans with their attorney is wise.
  • The executor should process the work of the probate quickly.

The attorney should serve as a buffer between the executor and the competing and complaining relatives. Example: the attorney will explain to doubting relatives about the absolute statutory requirement for the four month wait for creditors of the estate to file their claims, and how that period can’t be reduced.

An experienced attorney will help the executor to understand the motivation of the complaining relatives and accept what is going on. The attorney will use the law to protect the executor. Example: when people demand money now, the answer might be a lecture on the law’s requirement to wait until the probate is closed by the court; the legal process is designed to take time. The attorney can use the legal process to evict a relative who attempts to live in estate property without paying rent to the estate.

Being an executor is better than being the decedent. However, the executor’s peace of mind that might exist before the death of a loved one is usually shattered by the demands of the job after the death of a loved one. However, by relying on the probate attorney, much of the burden of the job of probate executor can be shifted, deflected and dismissed. The job won’t be easy, but it will be bearable.

ABOUT THE AUTHOR: William A. Taylor, attorney at law, does business as “THE BUSINESS LAWYERS.” He can be reached at (510) 893-9465

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