But I’m the Executor!
By: Helen Cripps | Published September 15, 2021
“But I’m the executor!!”
I hear this statement — a lot — and in various scenarios. So forget what you see on TV, what your friends say, and even what you might read in some allegedly reputable source. Here’s the real scoop.
For the sake of clarity, let’s suppose you think you are the executor for your mother, Audrey. If you call me and tell me that, my response is going to be something like, “I’m sorry. When did Audrey die?” If you tell me she hasn’t died, then I know immediately that you are not the executor.
You are not an executor (Missouri and many states use the modern term, personal representative) until the Court appoints you as the personal representative. This means that if Audrey named you in her Will, she has simply nominated you to serve in this position. You still have to file an application with the Probate Court and qualify to be officially appointed. The Court is not going to appoint anyone without proof of Audrey’s death.
Being nominated as the personal representative does not give you any authority during Audrey’s lifetime either, including authority to talk with me, your mother’s attorney. My ethical obligation is to Audrey, not you, and an attorney’s duty of confidentiality is going to prohibit me from speaking to you just because you are nominated as Audrey’s personal representative in her Will. (There may be other facts which would allow this, but that’s a topic for another day.)
Similarly, you cannot just take Audrey’s Will with you to the bank or other financial institution, show it to the banker and expect to access Audrey’s accounts (either during her life or after her death.) The Will is not a valid document unless and until the Court says it’s a valid Will (after Audrey’s death). There are time limits for presenting a Will to the Court (in Missouri, generally it’s one year from the date of Audrey’s death), and even then it’s subject to being contested.
So assuming you have been properly appointed as Audrey’s personal representative by the Court. What now? As personal representative, the only assets which you will have authority over are assets that must be probated. Probate assets are only those assets which Audrey owned in her own individual name when she died that have no valid beneficiary designation on them. So, for example, aside from being able to find out information about the following assets, you would have no access to, or authority over, the following assets that Audrey owned when she died:
Her home which has a valid beneficiary deed;
Her car which has a valid TOD (transfer on death) on the title;
Her bank account which has a valid POD (pay on death) on the account;
Her life insurance and IRA which have designated beneficiaries; and
Her Florida condominium which is owned in a revocable trust.
If you need assistance with the process needed to legally act on behalf of your family member or their estate, just contact the experienced attorneys at Cripps & Simmons here to see if we can help you.