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When someone passes away, it’s up to their executor to handle the probate process. But what happens if the executor of a will dies? While that’s a rarity, it can create complications as someone else will need to fill the executor role. Naming a successor executor is one way to avoid that scenario and other contingencies that might affect the settlement of an estate.
Talking to a financial advisor can be helpful for planning ahead for any obstacles that may arise during probate.
An Executor Plays a Pivotal Role in the Estate Settlement Process
In estate planning, an executor is someone who is charged with settling the estate of a deceased person. When someone writes a will, they can name a person of their choosing to act as executor. If someone dies without a will in place or did not name an executor, any interested party may petition the probate court to become the executor.
What does the executor of a will do? Broadly speaking, they settle the estate during the probate process. The duties and responsibilities of an executor include:
- Creating an inventory of the deceased person’s estates
- Notifying creditors of the person’s passing
- Liquidating estate assets to pay creditors if necessary
- Distributing remaining assets among the decedent’s heirs, according to the terms of their will
Executors are obligated to follow a fiduciary standard when settling estates. That means they must act in the best interest of the decedent’s heirs at all times. If they fail to do so, an executor can be removed.
What Happens If the Executor of a Will Dies Before the Testator?
The testator is the person who makes the will and the person on whose behalf an executor acts during probate. If the executor of a will passes away before the testator, then a new one can be named. That may require the testator to amend an existing will or nullify it and draft an entirely new one to change the executor.
If the testator takes no action and doesn’t amend their will or write a new one, then it’ll be up to the court to name an executor once they pass away. Again, any interested person can petition the court to become the executor.
That takes the burden of naming an executor off of the testator. However, it leaves the door open for someone who may not be qualified to step into the role, or who might not have the wishes of the testator in mind when executing the will.
What Happens If the Executor Dies During the Probate Process?
If the executor dies during the probate process, a successor executor can step in to finish the estate settlement. That assumes, however, that the testator was forward-thinking enough to name one or more successor executors to prevent the estate from being left without one.
When there is no successor executor named in the decedent’s will, then the court will have to name one. If only one person has submitted a petition to become the executor, the job might go to them. However, if there have been multiple petitions submitted the probate court can weigh the merits of each one before deciding.
How to Avoid Complications If an Executor Dies
If you’re the person who’s making a will, the easiest way to avoid complications that may result from the death of an executor is to name one or more individuals to succeed them. That way, if the executor passes away before you do or during the probate process, there will be someone else waiting in the wings to take up the reins.
You could also consider putting some of your assets into a trust, which would allow them to bypass probate altogether. With a trust, a trustee is in charge of managing assets on behalf of the beneficiaries that you name. You’ll have to name a trustee in this case, which could be the same person as your executor but does not have to be.
Placing certain assets in trust could avoid complications following the death of an executor since the trustee would be responsible for distributing them anyway. Instead of waiting for probate to conclude, the trust beneficiaries would be able to access their inheritance according to the terms you set in the trust document.
The Executor’s Guide to Probate Bond
As mentioned, acting as an executor entails certain responsibilities and you’re obligated to follow a fiduciary code of conduct. Before someone can be appointed as an executor, the court may require a probate bond to be issued.
Probate bonds are designed to ensure that estate executors act in good faith and do not abuse their privileges. The bond protects the estate’s beneficiaries, not the executor, but the executor is the one responsible for purchasing it.
A probate bond is essentially an insurance policy against any financial losses that might occur if the executor abuses their power or otherwise mismanages the estate. The amount of the bond can correspond to the amount of the estate in question.
If all the parties involved in the settlement of an estate agree, then a waiver of bond can be submitted to the court. However, that can leave the beneficiaries of the estate open to losses if the executor fails to do their job properly.
How to Transfer Vehicle Ownership of the Deceased
One common question executors may have to deal with is how to transfer a car title after the owner dies. The answer can depend on several factors, including whether the car was owned by one person or multiple persons and whether any provision was made in a will for its transfer.
If the title to the vehicle has more than one name on it, then the surviving owner may inherit the vehicle automatically. They can change the title to put in their name only, without any further intervention from the executor.
When the title is in the name of the deceased owner only, the title will have to be changed to whoever is going to assume ownership. If the car is included in probate because it hasn’t been transferred to a trust, then you likely won’t be able to do that until probate ends and ownership of the car is assigned to one of the decedent’s heirs.
There are a few documents you’ll typically need to transfer a vehicle title after death:
- A copy of the owner’s death certificate
- The original title
- Probate court documents allowing the transfer
The process for transferring vehicle ownership after someone passes away can vary from state to state. It may be a good idea to consult probate rules and the local DMV to determine what’s needed to complete the transfer.
How Much Does It Cost to Probate a Will?
The amount of money required to probate a will can vary by state. It’s common, however, for the cost to range anywhere from 3% to 8% of the estate’s value. In terms of what’s involved, the various costs can include:
- Court filing fees
- Attorney’s fees
- Fees paid to accountants
- Certificate fees for official documents
- Notification fees if you’re required to publish a public notice for creditors
- Probate bond fees
- Appraisal fees if you need to determine the value of estate assets
- Postage and mailing fees
- Storage fees if you have to keep assets in storage before probate ends
- Notary fees, if necessary
- Fees paid to the administrator of an estate sale, if applicable
It’s the executor’s job to keep track of fees associated with probate and pay them out of estate assets. There is one exception, as executors who are required to purchase a probate bond must typically pay the fee for that themselves.
Also, keep in mind that the executor is entitled to collect a fee for their services. The fee can vary from state to state but it’s not uncommon for an executor to receive anywhere from 2% to 5% of the estate’s value for their time.
The Bottom Line
Knowing what happens if the executor of a will dies can help you to avoid headaches if you find yourself dealing with that situation when a loved one passes away. Taking care to build some protections into your own estate plan by naming successor executors or setting up a trust for certain assets can allow for a smoother probate process after you’re gone.
Estate Planning Tips
- If you’re named as the executor to a will, it’s important to know what obligations you have and how to avoid any breach of fiduciary duty. Talking to a financial advisor can give you a better understanding of what’s expected of you. Finding a financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with up to three vetted financial advisors who serve your area, and you can interview your advisor matches at no cost to decide which one is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
- If you don’t have a will in place yet, you might want to consider drafting one. You could hire an estate planning attorney but it’s easy to draft a will online if you have a fairly simple estate. You may also consider adding a trust, power of attorney and advance health care directive to your estate plan to cover all the bases.
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