Depending on your news source, you may have heard that Wynonna and Ashely Judd inherited nothing from their famous mother, Naomi. Lawyers remind us that the appointment of Larry Strickland, Naomi’s husband of 33 years, as executor of the estate does not necessarily mean her daughters get nothing. Here’s what it means to be an executor.
Role of Executor
The appointed of an executor of a will is not the same as the naming of beneficiaries. While executors can also be named beneficiaries, they have a fiduciary duty to administer the affairs of the deceased in accordance with the law—and are obligated to act in the best interest of the estate and beneficiaries. JD Supra shares this interpretation of some of the legal terms that seem to have contributed to confusion related to Naomi Judd’s will:
Vanity Fair reports that Larry Strickland has “‘full authority and discretion’ over any property that is part of [Naomi’s] estate ‘without the approval of any court’ or permission from any beneficiary of the estate.” An executor (known as a personal representative in Massachusetts) is the fiduciary responsible for administering a decedent’s estate. In fact, it is common to include language in a will granting an executor broad fiduciary powers without license of court or notice to or consent of beneficiaries. This is intended to allow for a smooth and seamless estate administration process. This language certainly does not prohibit a beneficiary from bringing a claim against the executor (or the estate), nor does it mean that the executor can avoid upholding his fiduciary duties. Instead, it means that the executor does not need to check back in with the court (or beneficiaries) whenever a decision is made during estate administration.
Helpful to Know: Executors and Bonds
Among the important decisions made when a will is created, is the designation of a family member, friend, or professional to administer the estate on behalf of the testator. This representative is commonly referred to as an executor. Given the gravitas of the fiduciary obligations involved, executor bonds have long served as a protection for everyone involved. Sometimes these bonds are specifically requested during probate. Essentially, an executor bond guarantees the faithful performance of the executor in accordance with the law. Colonial Surety Company makes it quick and easy to get an executor bonds: get a quote online, fill in the information and enter a payment method. The bond can then be e-filed or printed from anywhere—even your lawyer’s office or zoom room. Executor Bond Here.
Sometimes families treat the role of executor as an honor or ceremonial title, or name siblings as joint executors so no one’s feelings get hurt. Lawyers often advice against this, noting that joint executors can lead to delays over even simple matters (like availability to sign off on documentation). It’s important to understand that executors have serious and official responsibilities, which can be time consuming even for families who are not celebrities and don’t have millions. Legal experts point out:
There are many factors to consider when naming someone as the fiduciary of an estate. First, are they fiscally responsible, organized, capable and competent? Second, do they have the bandwidth to take on this responsibility? Once appointed, the fiduciary will need to gather information regarding the decedent’s assets and work with counsel to prepare any estate tax returns and fiduciary income tax returns, as applicable. An individual who travels frequently or is not readily accessible may not be the best person to nominate as executor. Further, after the loss of a loved one, serving as a fiduciary can feel like an emotional burden — a burden that some may not wish to impose upon others.
Distributing Assets Privately
Law experts point out that the public may not in fact know what Naomi gifted her daughters using estate planning techniques beyond the will. When families have the goal of distributing assets to beneficiaries privately, it is possible to gift them without going through the public process of probate, as long as there has been careful planning. For example, Frank & Kraft explain: “Assets gifted in your Will must go through probate whereas non-probate assets bypass probate altogether. Converting assets to non-probate assets when possible, therefore, only makes sense. Common examples of non-probate assets include trust assets, proceeds of a life insurance policy, certain types of jointly held property, and funds held in a “payable on death (POD)” account.” Summing up the possibilities about arrangements Naomi Judd made, JD Supra observes:
It is possible that her will directs that some of the assets are distributed to her daughters. Her will may also direct that assets pour over to a trust for the benefit of her daughters. In fact, another article states that Naomi’s will refers to the “Naomi Ellen Judd Living Trust.”Alternatively, Naomi may have benefited her daughters through lifetime gifting or beneficiary designations separate from her will and trust (such as through life insurance or retirement accounts). Finally, perhaps Naomi did leave most of her assets to or for the benefit of her husband, Larry. There are estate tax reasons for leaving assets to or for the benefit of a surviving spouse…We do not know the ultimate disposition of Naomi’s assets and can only surmise what she may or may not have decided.
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