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What are the rights and duties of an executor prior to filing will with probate. It seems that there are immed needs

Somerville, MA |

to secure the estate, pay bills, etc and what rights do named beneficiaries have in those decisions?

Attorney Answers 5


  1. The Personal Representative should immediately act to safeguard the estate property. You should not make any distributions or permit others to remove estate property until such time as you can be officially named the Executor or Personal Representative of the estate.

    Beneficiaries will generally have a right to a copy of the Last Will and Testament and eventually an inventory and accounting of the estate property.


  2. Visit with a probate attorney in the state and county of the decedent's residence soon, regardless of whether you or another person is nominated as the executor of the estate. Legally speaking, responsibility for the items you've mentioned rests with nobody prior to the Court appointing an estate's personal representative. Because a beneficiary's interest in any part of the estate is derived only after a Will is admitted to probate, beneficiaries named in a Will are entitled to little before that time. The nominated executor, assuming they are in possession of the Will, should seek the assistance of counsel as soon as possible.

    Practically speaking, and depending on the jurisdiction, it may take a few weeks for the nominated executor to be appointed by the proper court. Between now and then, while nobody really has the authority to secure the assets, all of the interested parties have an interest in seeing that they don't disappear. The issue is often best-approached with a sense of cooperation and open communication until the appropriate person is appointed by the Court to step in and take responsibility for everything you've mentioned and more.

    This answer does not constitute legal advice. I am admitted to practice law in the State of Texas only, and make no attempt to opine on matters of law that are not relevant to Texas. This answer is based on general principles of law that may or may not relate to your specific situation, and is for promotional purposes only. You should not rely on this answer alone and nothing in these communications creates an attorney-client relationship.


  3. Given the backlog at the Probate Court, it will take anywhere from eight to ten weeks from the time the Petition for Probate is filed before the will is allowed and the executor appointed.

    As a practical matter, most creditors will cooperate with a delay in being paid if they are informed by an attorney that the Petition for Probate is pending. If there are immediate needs which simply cannot wait (say, the need to bring a lawsuit or evict a tenant or access a safe deposit box), then the nominated executor needs to file a petition with the Probate Court to be appointed as temporary executor until the Petition for Probate is allowed. This appointment will happen quickly if all of the beneficiaries assent to the petition. The nominated executor could also advance his own funds to cover bills and then be reimbursed once the appointment is allowed and the executor has access to funds. Once the appointment is allowed, any actions which the executor took while waiting will be treated as being permissible as long as they were made in good faith and in the interest of the estate.

    A beneficiary does not have any rights to make decisions unless that beneficiary is the nominated executor. The beneficiary has the right to notice of the pending court proceedings and to assent to or object to the Petition for Probate. Ultimately, the executor will need to account to the beneficiary for his management of the estate.

    E. Alexandra "Sasha" Golden is a Massachusetts lawyer. All answers are based on Massachusetts law. All answers are for educational purposes and no attorney-client relationship is formed by providing an answer to a question.


  4. I endorse Attorney Golden's thorough answer.

    As has been said, assuming that the proper paperwork has been filed and is pending, creditors will generally be patient. It is also very common for the nominated executor to advance funds on behalf of the estate, and seek reimbursement from the estate once the appointment is made. If action needs to be taken immediately to safeguard estate property and assets, the nominated executor should petition the court for temporary appointment of executor.

    You should contact a estate administration attorney to assist you in carrying out your duties as executor. Attorney fees for the executor are a valid expense of the estate. Best of luck, and I'm sorry that you have lost someone.


  5. All of the above advice is great.
    As a practice not, please notify any bank where the deceased may have a checking account. The most important part of this notice is trying to stop any automatic payments from the account, especially mortgage payments, which can wipe out an account fairly quickly. While the financial institution may not allow you to change any account activities, this notice may serve a future purpose for the proper protection of the estate.
    Please feel free to contact me directly if you have any other questions.

    If the information I provided above is helpful, please check the thumbs up button below. DISCLAIMER: This answer is provided in response to a "hypothetical" question and provided for general, informational purposes and does not create an attorney/client relationship. The information presented is not legal advice and may change based additional information and research. It is recommended that you speak to an attorney to discuss your specific legal issues. www.Bayerlawoffice.com

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