Probate Definitions, Part 1

Frequently people will come to our office and describe themselves as the executor over their parent’s estate and so anticipate being able to act or conduct business on their behalf.  While it may be true that they are the appointed executor, we learn that in fact the parents are still alive.  A discussion of the distinctions between an executor and an agent ensues, which is also the topic of today’s post.

A properly-drafted will certainly includes an appointment of an executor, and, if the person appointed is trusted by the testator, the appointment will likely be as an “Independent executor to serve without bond” which allows the fiduciary to act without continuing judicial intervention and without posting a bond to ensure these duties are met.   An executor is a crucial appointment in a will as this is the person who acts as the person responsible for carrying out the wishes of the testator – everything from specific bequests, to paying debts, to selling property, etc.  The powers and responsibilities are usually broad toward this end and appointees are generally, though do not have to be, trusted and responsible family members whom the testator believes will act according to the testators wishes.

It is important to understand, however, that the executor has NO authority unless and until the testator passes.  If a will does not need probating, the executor still has the authority to disburse personal property and home items according to the testator’s wishes.  If an administration is necessary, this appointment only takes effect when a judge declares so at a probate hearing.  Until such time, it is an expectation of future authority not a current power.

In contrast, if a person wishes to appoint a person to act on his/her behalf during his/her lifetime, then a power of attorney must be executed.  A power of attorney is an extremely important document which will be discussed in greater detail in a later post.

This article is written by an attorney at Wyatt & Mirabella, PC. Always consult an attorney before making any legal decisions. To make an appointment today for a free consultation, please click here to contact us.