Acting as an Executor

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1 Acting as an Executor Mary Randolph, J.D.

2 Chapter 1 Overview... 1 Learning Objectives... 1 Introduction... 1 What Executors Do... 1 What Trustees Do... 2 Your Legal Duty... 3 Payment for Serving as an Executor or Trustee... 3 Dealing With Emotions Yours and Your Relatives... 4 Review Questions... 5 Review Answers... 6 Chapter 2 If You re Asked to Be an Executor or Trustee... 7 Learning Objectives... 7 Introduction... 7 Should You Accept the Job?... 7 Legal Restrictions on Who Can Serve as Executor... 8 Skills You ll Need... 8 Your Situation... 8 Making the Job Manageable Get a List of Assets Make Sure There s an Up-to-Date Will or Trust Encourage Steps to Avoid Probate Get Wishes for Final Arrangements in Writing Make Sure You ll Have Access to Documents Make Sure You ll Have Passwords Encourage Efforts to Avoid Estate Tax, If Necessary Get a Plan for Hard-to-Sell Assets Get a Handle on Debts Try to Head Off Family Fights Review Questions Review Answers Chapter 3 The First Week Learning Objectives Introduction Organ, Tissue, and Body Donation Kinds of Donations Presumed Consent for Organ Donation Giving Consent Physician s Certification and Death Certificate Autopsy Burial or Cremation Burial Cremation Choosing a Mortuary Who Pays the Mortuary or Crematory Veterans Funerals and Memorial Services Other Tasks During the First Few Days Review Questions Review Answers... 39

3 Chapter 4 The First Month Learning Objectives Introduction Set Up a Filing System Order Copies of the Death Certificate Where to Order Who May Order Ordering in Person Ordering by Mail or Fax Ordering Online Find the Will Where to Look What You re Looking For If You Can Only Find a Copy You Know It Exists But Can t Find It After You Find It Find Other Documents That Leave Property Living Trusts Beneficiary Designations Joint Ownership Deeds Other Joint Ownership Documents Marital Property Agreements Prenuptial Agreements Transfer-on-Death Deeds Send Notifications of the Death Social Security Administration State Motor Vehicles Department State Health Services Agency Credit Card Issuers Credit Bureaus Post Office Utilities and Other Services Landlord Membership Organizations The Direct Marketing Association Social Networking Sites and Other Social Networks Charities and Other Organizations the Deceased Person Supported Keep Property Secure Sort Through Personal Belongings Review Questions Review Answers Chapter 5 Claiming Life Insurance, Social Security, and Other Benefits Learning Objectives Introduction Life Insurance and Annuity Proceeds Life Insurance Annuities Social Security Benefits One-Time Death Benefit Monthly Survivors Benefits Pensions Veterans Benefits Dependency and Indemnity Compensation Wartime Service Pension ii

4 Burial Allowance Applying for Veterans Benefits Wages Owed the Deceased Person Special State Procedures Small Estate Affidavit Procedure The Family Allowance Other Possible Benefits and Claims Workers Compensation State Disability Benefits Federal Employment Benefits Railroad Retirement Act Benefits Unions Benefits From Health Insurance Lawsuits for Wrongful Death Review Questions Review Answers Chapter 6 Making Sense of the Will Learning Objectives Introduction Does the Will Appear Valid? Basic Requirements Out-of-State Wills Handwritten Wills More Than One Will Reading the Will Personal Declarations Nomination of the Executor The Executor s Bond Specific Gifts Specific Gifts Listed in Another Document Gifts of Money Gift of the Residuary Estate Children s Guardians Trusts Custodianships for Minors Pour-Over Clause Payment of Debts and Taxes No-Contest Clause Simultaneous Death Other Clauses Self-Proving Affidavit Gifts to Groups of People What Children or Issue Means Group Members Born After the Will Is Made Group Members Born After the Will Maker s Death Deceased Group Members Events That Affect Who Inherits The Will Maker Got Divorced The Spouse Wants More A Child Wants More Beneficiaries Have Died The Lawyer Who Drafted the Will Inherits Property Property Has Been Given Away or Sold Beneficiaries Have Already Gotten Their Inheritance The Will Maker Gave You Different Instructions iii

5 Review Questions Review Answers Chapter 7 If There s No Will Learning Objectives Introduction Who s in Charge Who Gets What: The Basic Rules How State Laws Work Misconduct That Bars Heirs From Inheriting Finding Your State s Rules Understanding Key Terms Spouse Children and Issue Brothers and Sisters If an Heir Has Died Survivorship Requirements Rights of a Deceased Heir s Descendants Taking Care of Minor Children Review Questions Review Answers Chapter 8 Taking Inventory Learning Objectives Introduction Step 1: Look for Assets Hiding Places The Paper Trail Safe Deposit Boxes Unclaimed Assets Step 2: Make a List of Assets Real Estate Cash and Bank Accounts Stocks, Bonds, and Mutual Funds Life Insurance Retirement Plans Wages or Benefits From Employers Small Business Interests Limited Partnerships Vehicles Debts and Court Judgments Frequent Flyer Rewards Patents and Copyrights Other Tangible Assets Step 3: Estimate the Value Real Estate Stocks and Bonds Life Insurance and Annuities Businesses Limited Partnerships Vehicles Art, Antiques, or Collectibles Step 4: Add Up Debts Step 5: Determine How Title Was Held Solely Owned iv

6 Joint Tenancy Tenancy by the Entirety Tenancy in Common Community Property With Right of Survivorship Community Property Property Held in a Living Trust Review Questions Review Answers Chapter 9 - Managing Assets and Paying Bills Learning Objectives Introduction Your Legal Duties Put the Estate First Keep Estate Assets Separate From Your Own Be Fair to All Beneficiaries Don t Take Risks Follow the Will s Instructions Keeping Good Records Setting Up an Estate or Trust Bank Account What Kind of Account to Open Getting a Taxpayer ID Number From the IRS Using the Account Keeping Tangible Assets Safe The Deceased Person s Residence Rental Real Estate Owned by the Deceased Person Vehicles Firearms Small Things Cash Managing Cash Accounts and Investments Bank Accounts Securities Digital Assets Paying Claims and Debts Debts You Don t Need to Pay Formal and Informal Claims How to Pay Claims If There Isn t Enough Cash If There Aren t Enough Assets Your Personal Obligation to Pay Debts Giving Property to Beneficiaries Selling Property Why to Sell Property How to Sell Property Handling a Business Sole Proprietorship Partnership Limited Liability Company (LLC) Closely Held Corporation Review Questions Review Answers Chapter 10 Caring for Children and Their Property Learning Objectives Introduction v

7 Immediate Concerns Raising a Child Is a Personal Guardian Necessary? How to Get a Guardian Appointed Who Serves as Guardian Court Supervision of the Guardian When the Guardianship Ends Managing a Child s Property Is an Adult Property Manager Necessary? Kinds of Property Managers General Legal Duties of the Property Manager Custodians Under the UTMA Trustees of Children s Trusts Property Guardians and Other Court-Ordered Solutions Personal and Practical Issues Review Questions Review Answers Chapter 11 Taxes Learning Objectives Introduction Overview Who Is Responsible for Filing Tax Returns Returns You May Need to File Where Does the Money Come From? Your Personal Liability Paying Taxes on Your Compensation The Deceased Person s Income Tax Return: Form Is a Return Required? Special Rules for Surviving Spouses When the Income Tax Return Is Due What Forms to Use Claiming a Refund Special Rules for Final Tax Returns The Estate s Income Tax: Form Is a Fiduciary Return Required? Getting an ID Number for the Estate Notifying the IRS That You re in Charge Completing the Return When the Return Is Due Who Pays the Tax Estimated Tax Payments State Income Taxes Income Tax on Trusts Simple Living Trusts Ongoing Trusts Federal Estate Tax Value of the Estate for Estate Tax Purposes The Portability Provision for Spouses The Filing Deadline Estimating the Tax Owed Paying the Federal Tax Gift Tax Returns Other Estate Tax Concerns for the Executor Working With a Tax Expert State Inheritance and Estate Taxes Pick-Up Taxes vi

8 State Estate Taxes State Inheritance Taxes Other Taxes Real Estate Business Beneficiaries and Taxes Income Owed to the Deceased Person Income Tax on Inherited Property Property Subject to Estate or Inheritance Tax Tax Basis of Inherited Property Capital Gains Tax for a Surviving Spouse Typical Situations Everything Left to the Surviving Spouse Everything to Adult Children A Large Estate Large Estate With Trust Review Questions Review Answers Chapter 12 Property That Doesn t Go Through Probate Learning Objectives Introduction Common Assets That Don t Go Through Probate Joint Tenancy Property Tenancy by the Entirety Property Community Property Community Property With Right of Survivorship Property Covered by a Community Property Agreement Other Community Property Property Held in a Living Trust Real Estate That Qualifies as a Homestead Property That Passes to Immediate Family by Law Salary or Wages Payable-on-Death Bank Accounts Life Insurance Proceeds Retirement Accounts Health Savings Accounts Securities Registered in Transfer-on-Death Form Savings Bonds Co-Owned Bonds Bonds Registered in Beneficiary Form Vehicles Vehicles Registered in Transfer-on-Death Form Vehicles That Qualify for Nonprobate Transfer Under State Law Pension Plan Distributions and Other Death Benefits Real Estate Left by a Transfer-on-Death Deed Personal Property in Small Estates Review Questions Review Answers Chapter 13 Transferring Joint Tenancy and Other Survivorship Property Learning Objectives Introduction Real Estate Documents You Need Where to File Your Documents vii

9 Bank Accounts Securities Brokerage Accounts, Mutual Funds, or Money Market Funds Certificates Vehicles Savings Bonds If Title Wasn t Cleared When the First Joint Tenant Died Review Questions Review Answers Chapter 14 - Transferring Community Property Learning Objectives Introduction Your Transfer Options Survivorship Community Property Community Property Agreements Validity of These Agreements Transferring Community Property to the Surviving Spouse State Probate Shortcuts California Idaho New Mexico Texas When the Second Spouse Dies Review Questions Review Answers Chapter 15 Claiming Money in Retirement Plans Learning Objectives Introduction Retirement Plans: The Basics How Retirement Plans Save on Taxes Early Distribution Penalties Required Minimum Distributions How Inherited Funds Are Taxed Who s the Beneficiary? The Beneficiary Declines the Money The Surviving Spouse s Rights A Former Spouse s Rights If the Surviving Spouse Is the Beneficiary Rolling Over the Account Leaving the Account in the Deceased Spouse s Name Nonspouse Beneficiaries The First Year The Second and Later Years Special Rules for Multiple Beneficiaries Special Situations Cobeneficiaries Options If a Trust Is the Beneficiary If There Is No Designated Beneficiary If the Beneficiary Has Died If No Beneficiary Was Named If the Estate Is the Beneficiary Review Questions Review Answers viii

10 Chapter 16 Claiming Payable-on-Death Assets Learning Objectives Introduction If the Asset Was Co-Owned The Effect of Divorce on POD Beneficiaries How Beneficiaries Can Claim Assets Bank Accounts Health Savings Accounts U.S. Savings Bonds Vehicles Real Estate Review Questions Review Answers Chapter 17 Special Procedures for Small Estates Learning Objectives Introduction Are You Handling a Small Estate? How States Define Small Estates What Kinds of Property to Count Subtracting What s Owed on Assets Claiming Property With Affidavits Who Can Use an Affidavit What Kind of Property Can Be Claimed The Waiting Period Preparing the Affidavit How to Claim the Property Using Simplified Probate State Eligibility Rules How It Works: An Overview Can You Do It Yourself? Getting Started Review Questions Review Answers Chapter 18 The Regular Probate Process Learning Objectives Introduction Common Questions About Probate How Much Does Probate Cost? Is There a Deadline for Starting Probate? How Long Will It Take? Who Will the Court Name as Executor? The Typical Probate Process Getting Started The First Hearing Posting a Bond Proving the Will s Validity Managing Estate Property Paying Creditors Giving Property to Beneficiaries Early Distributing Property and Closing the Estate The Process in Uniform Probate Code States Informal Probate Unsupervised Formal Probate ix

11 Supervised Formal Probate Probate in Another State Disputes During Probate Challenges to the Will Fights About Who s Entitled to Inherit Challenges to the Executor Settling Disputes Do You Need a Lawyer? How Lawyers Can Help When You Can Handle Things Yourself When to Hire a Lawyer If You Go It Alone: Working With the Court What You Need to Know Where to Find Forms and Information Finding the Right Probate Court Review Questions Review Answers Chapter 19 Wrapping Up a Simple Living Trust Learning Objectives Introduction How Simple Living Trusts Work If You re the Surviving Spouse Notifying Beneficiaries Transferring Assets to Yourself Managing Your Revocable Trust Your Other Duties Who Serves as Successor Trustee The Affidavit of Assumption of Duties What s in the Trust Property Owned in the Trustee s Name Assets From a Pour-Over Will Notifying Beneficiaries General Practices Special State Requirements Getting Valuable Property Appraised Registering the Trust Debts and Expenses Transferring Trust Property Transferring in Kind or in Cash Selling Assets and Distributing the Proceeds Transferring Property to Children Younger Than Making In-Kind Transfers Ending the Trust The Final Accounting The Trust Tax Return Review Questions Review Answers Chapter 20 Managing a Child s Trust Learning Objectives Introduction How a Child s Trust Works The Trustee s Job An Overview of the Trustee s Tasks Your Legal Duties x

12 Accepting or Declining the Trustee s Job Your Asset Management Duties Personal Considerations Liability Worries Can You Resign Later? Making the Job Easier Putting Your Decision in Writing Gathering Trust Property Keeping Beneficiaries Informed General Principles Special State Requirements Registering the Trust Investing Trust Property Working With Experts The Legal Rules Coming Up With Your Investment Strategy Picking Investments Conflicts With Beneficiaries Keeping Good Records Handling Trust Taxes Notifying the IRS That You re Trustee Getting a Tax ID Number for the Trust The Trust Tax Return Minimizing Income Taxes Sending Beneficiaries Schedule K Distributing Property Your Authority Dealing With Beneficiaries If You Want to Resign How to Resign Your Responsibilities If You Resign Ending the Trust Review Questions Review Answers Chapter 21 Finding More Information Learning Objectives Introduction Libraries Online Resources Government Websites Law Firm Websites State Bar Association Websites Commercial Online Legal Databases Finding Forms Finding Definitions Researching Specific Questions Look for a Statute See How Courts Interpret the Statute If There s No Statute Review Questions Review Answers Chapter 22 Lawyers and Other Experts Learning Objectives Introduction xi

13 When to Get Help Deciding What You Want From a Lawyer Finding a Lawyer Personal Recommendations Group Legal Plans Referral Services and Directories Choosing a Lawyer Working With a Lawyer Paying a Lawyer How Lawyers Charge for Probate Work Getting a Written Fee Agreement Solving Problems With Your Lawyer Communication Problems Concerns About Quality Fee Disputes Review Questions Review Answers Glossary Appendix State Information Index xii

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