You are the Executor: Now What?

The following is a guest post by Matthew W. Gibson, attorney.  Note that the following information is specific to Ohio.

            One of the first questions a person who has been named as an Executor in a decedent’s Will should ask is whether probate is actually necessary.  If a decedent has no assets that need to be transferred through probate, then probate can be avoided.  Assets that do not need to be transferred through probate include:         

            (i)   real estate or other assets held jointly with rights of survivorship;            

            (ii)  bank accounts, CDs, life insurance policies, retirement accounts, or other assets with beneficiary, or “transfer-on-death” designations; and            

            (iii)  annuities.             

            Often times, an individual who is named as an Executor has trouble moving past this first question because the individual has no idea what assets the decedent owned.  If you cannot find bank statements or life insurance policy information among the decedent’s possessions, a great place to locate assets is the decedent’s most recent Form 1040 and the accompanying Schedules, which should help identify a fair amount of asset and debt information.  Another place to look for asset information is in the county Auditor records, which are a matter of public record and often times readily available on-line.            

            Once the Executor has located the decedent’s assets, if there are no assets that need to pass through probate, the Executor should file an Application to File Will for Record Only (standard form 2.0A).  If there are assets that need to pass through probate, a summary proceeding may still be available that can greatly reduce the time and expense associated with probate.  An attorney experienced in probate matters should be able to assist you in determining whether a summary proceeding applies.            

            Many individuals who are named as Executors, either before or while they are finding asset information, come across bills, sometimes boxes of bills, and naturally have questions about the payment of debts.  Unsecured creditors, such as credit card companies, are typically only entitled to collect from a decedent’s probate estate, so any assets that do not need to pass through probate are not subject to unsecured creditors’ claims.  Moreover, unsecured creditors have a low priority among estate creditors, and are generally not entitled to payment until administration costs and expenses, funeral expenses, and the family support allowance of up to $40,000 are all paid.  If any individual named as an Executor is uncertain as to whether these higher priority payments can be made, the Executor should contact an attorney to determine if it is wise to refrain from paying unsecured creditors. 

             If you have been named as an Executor in a decedent’s Will and are at all uncertain as to what to do, you should contact an attorney who handles probate matters to assist you in navigating the probate process.           

Matthew W. Gibson is an attorney in the law firm of Jones, Troyan, Pappas & Perkins located in Powell, Ohio.  He can be reached at www.jonestroyan.com or call (614) 888-8500 ext. 132.

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