You have been named as an executor in a Massachusetts Will, and the person that made the Will has passed away. What are you supposed to do now? Adding to the grief over the loss of a loved one, the job of an executor may seem overwhelming. As the nominated executor, you have certain obligations to the heirs of the estate. There is no requirement that the nominated executor hire a Massachusetts probate attorney, although most nominated executors are more comfortable doing so.
Here are the basic steps that may help you understand the process and your job as the executor.
1. Getting Legally Appointed. A person named in a Will as executor is only nominated to be the executor. Until they are appointed by the probate court, the executor has no legal authority to access the estate of the deceased. For the executor to become legally appointed, the original Will, certified death certificate, Petition for Probate, Bond form, and Military Affidavit must be filed in the appropriate probate court. The Massachusetts Probate Forms may be found here
If the nominated executor does not live in Massachusetts, a Massachusetts resident must be appointed as the local Agent for the estate. If the executor hires an attorney, the attorney may be the local agent.
A copy of the death certificate and a copy of the Petition for Probate must be sent to the Office of Medicaid. The Office of Medicaid will check to see if the deceased was receiving Medicaid (MassHealth) benefits, and if so, will notify the executor that the state will make a claim for recovery of the funds.
Estate Recovery Unit
P.O. Box 15205
Worcester, MA 01615-9906
It generally takes about six to eight weeks from the time the papers are presented to the probate court to the time the executor becomes legally appointed. During that time, the executor has very little actual power over the assets of the decedent.
2. Protecting and Collecting the Estate: The executor’s primary job is to protect the property of the decedent for the benefit of the takers under the Will. After the executor is legally appointed by the probate court, they may order court certified copies of the appointment. This certified copy is the legal proof of appointment that most banks and brokerage firms request when the executor attempts to collect the assets.
After the executor has identified assets of the estate, it is usually advisable to start collecting them into a single “estate account.” This estate account may be a checking account, savings account, or a combination of both of these. The executor should be the only signatory on the estate account. The estate account will need a tax identification number assigned by the Internal Revenue Service. Neither the social security number of the decedent nor the executor should be used. IRS instructions on how to apply for a tax identification number.
If the decedent had an investment account, the executor should discuss with the advisor if any of the holdings should be redeemed for cash. Any cash from the sale of holdings are added to the estate account.
The estate account is used to pay any outstanding (undisputed) bills and maintain real estate.
3. Selling Real Estate: Once the executor is legally appointed, they have full authority to sell any real estate. If the real estate is sold, the proceeds from that sale are simply added to the estate account that has been set up.
4. Traps for the Executor: Most executors take their jobs seriously, and will do their best to accomplish what the decedent directed. There are, however, some common missteps even the most well-intentioned executor may make.
a. Co-mingling funds: The executor must never combine their own personal funds with the estate funds.
b. Making Early Distributions: Despite pressure from beneficiaries, the executor must be careful to make sure the estate has sufficient funds to pay any legitimate expenses and debts of the decedent. Creditors have one year from the date of death to file a claim against the estate. If there are no funds remaining, because the executor has distributed the money too early, the executor is personally responsible for paying that debt.
c. Not Following Direction for Personal Property: If the Will directs certain items of personal property be given to specific people, the executor must follow that direction. If they do not, the designated beneficiary may file suit against the executor.
d. Not Getting Receipts For Partial Distribution: If there appear to be sufficient funds, the executor may decide to distribute a portion of the estate before the one-year mark has passed. It is important that the executor have each person sign a receipt for the early distribution. This form should have a legal promise that the beneficiary will indemnify the executor should any creditor make a claim.