Yes, an Executor has to have had the Will admitted to probate, taken the oath, and have been issued Letters Testamentary by the probate court judge before he or she is able to take any official actions. Until that time, he or she is only nominated, NOT actually the Executor.
This answer is not intended to provide you with specific legal advice regarding your situation, or to create any attorney-client relationship. The intent is only to provide general information. You should be aware that you cannot rely on this answer to provide you with any protection against tax penalties. You should always consult your own attorney in order to obtain legal advice.
The executor will need to file a petition to probate the will, which notifies all of the heirs of the existence of the will and gives any interested party the chance to file an objection. If all of the heirs are on board from the get-go, they can sign an acknowledgment which allows the will to be probated much more quickly. If no objections are filed, the Petition is granted. If an objection is filed, a hearing will be held on the objection. If the objections are denied after a hearing, the petition is granted. After the petition is granted, the executor is issued an oath by the probate court. As to what powers are given to the executor, these are set forth in the will. Unless the will waives the need for the executor to post a bond, the executor will need to post a bond in an amount equal to the stated value of the assets of the estate, less real estate (which stands for itself). The executor will then need to abide by the terms of the will, and may need to file periodic accountings with the probate court.
I see many cases where all parties are in agreement, and a will can be probated easily without the need for an attorney. However, if there are any complications, or if there are any provisions of the will which are not crystal clear, you need to at least sit down with a probate attorney to get educated on what needs to be done or hire them to assist you to make sure it is right. An executor can be held personally liable to the other heirs if they do something wrong, intentionally or not.
The above information is general in nature. In order to obtain more specific and legal advice upon which to base your important decisions, please contact our office directly for a free phone or in person consultation. Robert M. Gardner, Jr. Hicks, Massey & Gardner, LLP email@example.com 53 W. Candler St. Or 718 Oak St. Winder, Ga. 30680 Gainesville, Georgia (770) 307-4899 (770) 538-0555 gadebtlaw.com hicksmasseyandgardner.com serving metro Atlanta and all of Northeast Georgia Bankruptcy, Divorce, Personal Injury, Worker’s Compensation, Medical Malpractice, Adoption, Civil and Criminal Litigation
Technically, the Executor named in the Will but not yet sworn in by the Court CAN take actions that are beneficial to the Estate. Assuming the Executor intends to file a Petition to probate the Will of the deceased person, the powers he has once appointed Executor by the Court are said to "relate back" to the actions he took before his formal appointment as Executor.
But whether it is advisable for the Executor to act before having taken the oath of office is another question, one that is dependent on the family situation and whether a caveat is expected.
Preferably, the Executor would be formally appointed by the Court by filing a Petition to Probate the Will and following the process outlined by earlier contributors, and take the Oath of Office before acting on behalf of the Estate. That said, if Estate property currently facing risk of loss because it is unsecured, an individual who has been nominated Executor could act to secure that property.
Best of luck with your situation.
If you find this answer helpful, please mark it here on AVVO as helpful. Now for the fine print: In answering you, I am attempting to communicate general legal information and am not representing you. Here on AVVO, I'm limited to the facts and details that you provide to me, and it's impossible for me to get the "big picture" that I would create based on a consultation with you. So, it is possible that my answers here, while meant to be helpful, may in some cases be incomplete or inaccurate. Accordingly, I highly recommend that you retain legal counsel rather than rely on the answers here. I'd be happy to assist you further, so please feel free to contact me using the contact information listed above. Any information in this communication is for discussion purposes only, and is not offered as legal advice. You have no right to rely on the information contained in this communication and no attorney-client relationship is formed. Finally, nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein.
Yes, until the named Executor files a probate petition, and the petition is approved by the court, and Letters Testamentary issues, he is NOT yet the executor and has no authority. I should add that this should only be done with a lawyer's help.
If you find this answer helpful, please mark it here on AVVO as helpful. In answering you, I am attempting to communicate general legal information and am not representing you (and am not your lawyer). Do feel free to call me at 404-768-3509 if you wish to discuss actual representation (the phone call also does not retain counsel; that requires an office visit and appropriate paperwork). In that a forum such as this provides me with limited details and doesn't allow me to review details and documents, it is possible that answers here, while meant to be helpful, may in some cases not be complete or accurate, and I highly recommend that you retain legal counsel rather than rely on the answers here. (You can also email my office at firstname.lastname@example.org . An email also does not retain my office, but can help you get an appointment set if you prefer not to call). I am happy to discuss possible representation with you. Any information in this communication is for discussion purposes only, and is not offered as legal advice. There is no right to rely on the information contained in this communication and no attorney-client relationship is formed. Nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. I am also required to advise you, if your question concerns bankruptcy, that the U.S. Congress has designated Ashman Law Office as a debt relief agency that can help people file bankruptcy.