This column first appeared in the SA Express-News and its MySA.com website on April 17, 2015.
Dear Mr. Premack: Many years ago I agreed to act as Executor for the estate of a close relative. Now, she is very ill and may be near death. I find myself having second thoughts about being Executor. Is there a way that I can withdraw my name? If I stay the course, what responsibilities will I have as her Executor? Thanks. – T.G.
If your relative was healthy and capable of changing her Will, you could ask her to remove your name. She could make a new Will or a codicil to her old Will that removed you as her choice for Executor and substituted someone else. But she is not well enough to change her Will, so your name cannot be removed under her direction.
However, you do have the option of refusing to become Executor. Ideally, in the Will she selected an alternate Executor to act in case you should die, become disabled or refuse to act. If you refuse, then you and the alternate Executor should hire a qualified probate attorney. The attorney will prepare a Waiver for you to sign, which passes the responsibility to the alternate Executor.
If you stay the course, what will be your duties as Independent Executor? The primary responsibility is to carry out the instructions she expressed in her Will. Typically, after she dies, the first step is to talk to a qualified probate attorney about having the Will admitted to probate. The attorney will help you appear before the local Probate Judge, prove the Will’s validity, and get “Letters Testamentary” proving you are Executor.
The second step is to conclude her financial affairs – locate her remaining assets, report to social security, pay her outstanding bills and pay her taxes. If she owns any real estate with a mortgage, you must give a written notice to the mortgage company.
As Executor, you are legally required to publish a notice to her general creditors in a local newspaper. This alerts anyone who is owed a debt by her estate to contact you. You must notify each heir named in the Will that the Will has been probated and inform them of what inheritance to expect. You must prepare an “Inventory, Appraisement and List of Claims” listing her major financial assets and their value. Unless there are no debts, the Inventory must be filed with the court and approved by the Judge. It is intended to provide her creditors with a list of assets so they know whether any debts she may owe are collectible.
On the tax front, it is the Executor’s job to handle any required Federal Estate Tax Return. This is needed only if her estate exceeds $5,430,000 (in 2015). You must also see to her final Federal Income Tax Return (Form 1040) covering the period beginning on January 1 and ending on the date of her death, and may need to file a Fiduciary tax return (Form 1041) for any other time period.
After you have paid her debts and finished her taxes, you are responsible for distributing her remaining assets to the beneficiaries named in her Will. This might involve writing checks if her estate is cash, may include selling her home,or deeding it over to her heirs, and may involve transfer of stocks, bonds and mutual funds. The paperwork can get quite involved.
Fortunately, an Independent Executor can accomplish all these tasks without going back to court for review and approval at each step. Once you have concluded the estate’s affairs and fulfilled the terms of the Will, your job is done. In a Texas Independent Probate, there is no legal requirement that you “close” the estate by filing a final report with the Judge. The assistance of a qualified probate attorney is invaluable and necessary, since an Executor cannot legally represent him or herself in the probate process.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.TexasEstateandProbate.com or www.Premack.com.