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When a person dies and his or her will is submitted to the court for probate, the court clerk issues a document indicating that the executor has the legal right to perform the duties and responsibilities required to settle the estate. The title of the document allowing the executor to do so is called letters testamentary. In a situation where the deceased passed away without making a valid will, the document issued is known as letters of administration.
A standard clause in a will appoints an individual, attorney, bank or trust company to act as the executor of the estate. The person or company named in the will has the right to refuse to take on the responsibility of acting as executor if he or she wishes. The beneficiaries of the estate may also object to the person or company named as executor. In the absence of a valid objection, the judge will usually appoint the person or entity named in the will as the executor.
If the executor wishes to get the letters testamentary issued without going to see an attorney first, a copy of the will and the death certificate must be presented to the court clerk's office. The clerk will open a probate file for the estate of the deceased. The official document is issued by the court office.
Once the letters testamentary have been issued, the executor takes them to the deceased's bank or other financial institution so that the funds held in a bank or investment account may be released. It's a good idea to make several copies of the document and have them certified so that they can be presented to each institution. The executor of the estate is responsible for locating and securing all the assets forming part of the estate. Part of the executor's duties may also include locating beneficiaries named in the will.
Before any of the named beneficiaries receive their inheritance, the executor must pay debts on behalf of the deceased. Legal notices to creditors may need to be published, and any creditors wishing to make a claim against the estate are given a specific time to do so. Any estate taxes are paid by the executor by authority of the letters testamentary.
A final income tax return must also be prepared on behalf of the deceased. Any income taxes owing are paid from the estate's assets. The executor then arranges for the funds to be distributed to the estate's beneficiaries according to the instructions set out in the will. The executor will likely need to get assistance from an attorney acting for the estate to perform his or her duties.
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