What Powers Do You Have As Executor of a Will Before Appointment?
As a the named executor of a person who has recently passed away, there is more on your mind than simply administering the decedent’s estate. But before you rush to make an appointment with the probate clerk, it is wise to step back and consider what powers you have before you are officially sworn in as executor of the estate, and how much can be accomplished before you receive your letters of administration.
Virginia Code Section 64.2-511 provides that “[a] person named in a will as executor shall not exercise the powers of executor until he qualifies as such by taking an oath and giving bond in the court or before the clerk where the will or an authenticated copy thereof is admitted to record, except that he may provide for the burial of the testator, pay reasonable funeral expenses, and preserve the estate from waste.” This means that certain actions which come quickly after a person’s death can be accomplished through the authority granted under a will even prior to an executor’s qualification before the clerk of court. For example, paying for a casket and changing the locks on the decedent’s house are all acts that would fall under the scope of this provision since time is often of the essence.
Additionally, as part of preserving the assets, it is important to take stock of what assets qualify as “probate” assets (those assets that pass pursuant to the terms of the decedent’s will) and “non-probate” assets (those assets that pass by operation of law outside of the decedent’s will). Typical examples of non-probate assets include life insurance contracts, retirement benefits, payable-on-death (POD) or transferrable-on-death (TOD) accounts, and assets that are jointly titled with right of survivorship (including some real estate, depending on the deed). By their very definition, an executor does not have to wait until they are qualified to begin the process of transferring these assets to named beneficiaries, and some transfers happen automatically by operation of law, so it is important to properly classify and account for these type of assets at the outset. Further, executors should be aware that “non-probate” assets can make up a majority of the value of a decedent’s estate, meaning there may be a possibility that some of the more formal probate requirements may be avoided in administrating the decedent’s estate.