What does the executor or personal representative under my will do?

When you die, there's somebody who's appointed as the personal representative for your estate. There's two ways this can happen:

  • Your will appoints them ~ This is a very simplified process. It's one of the main terms of your will. And that is who is the personal representative, who is the executor for your estate. That person's job then is to round up your documents and get your death certificate and the will to the courthouse, let the court know that they're the person they're the point person in charge of your estate. They then have to get the assets together. They have to contact all of your relatives give them notice that you've died, and then start the process of distributing your estate. If you've created a trust, whether revocable or irrevocable, a trust for your children, their job is to make sure that the right assets go to the right place and get those assets into the trust. It's a lot of paperwork to make sure everything is signed over to the right place. So you want to make sure when you're creating a will, that the person you choose to be the personal representative or your executor is a very responsible person who's comfortable with paperwork. Their job is simply to follow the terms of your will, but that can take a lot of time and can be very intensive.
  • A Court appoints them because you don't have a will ~ This is going to be the worst case scenario. If you die and you don't have a will, the court has no idea who should be in charge of your estate (your assets, your children, whatever else you leave behind). Who should be rounding everything up? Who should be contacting relatives? Who should be contacting your banks? Who should be looking after your assets? And the scariest question, Who should be making sure your children are protected and given to the right person?

These two options highlight one of the most important reasons why you need to have an estate plan. You need to have a will with the right person appointed to make sure that they can effectuate what's in your will and what you want to have happen.

What Happens if You Don't Have a Will

If you don't have a will, then the next step is what do we do? Somebody, and there's no necessarily legal person who has to do it, but somebody has to open an estate and say that John Smith has died and we need to distribute his assets. Now you may be thinking I'm not going to have a lot of money when I die, so it's not a big deal. Do you know who can open the estate? Your creditors. So if you have credit cards and you die and it's been a couple of months and your credit card balances go up and you're not making your payments because you're gone, the credit card company will eventually do a little research and find out you're deceased.

If your family hasn't opened an estate, the credit card company may then open an estate so that they can be paid out of whatever's left of your estate, whatever assets you have left behind. You don't want your creditors to be the people who open the estate. You want it to be your family members, not the creditors, who open the estate and work with the court to figure out where are your relatives and who should be the executor. The Court may appoint your brother who is terrible at paperwork, or they appoint your sister who lives in another country and wants nothing to do with any of this. Your estate is now bogged down with people who don't want to be involved and they're fighting credit card companies over an old American Express Bill from a couple of years ago or an old Target store card that you hadn't paid off. All because you didn't spend a little bit of time to create a will create a basic estate plan and appoint a personal representative or executor somebody to take care of your state when you're gone.

If you don't have an estate plan, let's set up a Legal Strategy Session to get the process started. If you've been appointed as the personal representative or executor for an estate and you aren't sure where to get started, we can have a Legal Strategy Session to review your next steps and you can also download the free Personal Representative Checklist to help you get started in your role for the estate. You don't want to leave behind your assets with nobody appointed as the executor or the personal representative. If you do all you're leaving is a long court fight and chances are your family member is going to be dragged into a fight with creditors and that's going to leave a bitter taste in everyone's mouth.

Andrew Ayers
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I work with business and estate planning clients to craft legal solutions to protect their legacies.