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Executor of an estate: "It's an honor just to be nominated."


An executor is a person appointed to carry out the directions in a last will and testament. Their primary duty is to distribute estate assets in a legal and orderly fashion. 

There is a common misconception that an executor possesses the power to handle a decedent’s assets immediately following their death merely because the executor is nominated in the decedent’s will.  With this misconception, they may improperly dispose of the decedent’s personal property, attempt to transfer funds in bank accounts, or conceal information from beneficiaries.
Ohio law is very clear that an executor nominated in a will has no legal power until he obtains letters of appointment from a probate court.  Any act or transaction by a nominated executor prior to the issuance of letters of appointment is simply invalid.  Until formally appointed, the person is merely nominated by the testator (the person making the will) subject to the probate court’s approval. 
Before issuing letters of appointment, the probate court must find that a nominated executor is a “suitable” person.  He must be reasonably disinterested and in a position to fulfill the obligations of a fiduciary.  That does not mean that the nominee can’t also be a beneficiary of the estate.  Indeed, most times an executor is also a named beneficiary of an estate.  The probate court will simply determine whether there is any hostility and distrust among the parties and whether there are any extraordinary conflicts, either personal or financial, which may pose a problem. Courts will give great weight to the testator’s choice of executor and any reasonable doubt must be resolved in favor of the nominated executor.  The evidence to disqualify a nominated executor must be relatively strong. 
Before being appointed, the executor must sign a written acceptance of his duties, acknowledging that he is subject to removal for failure to perform those duties of an executor and that he is subject to possible penalties for loss or theft of the property he holds on behalf of the estate.  The executor must also post a suitable bond unless the decedents will dispense with that requirement. 
If no executor is named in a will or if the executor named in a will is no longer living, the probate court will issue letters of appointment to a suitable person named as a beneficiary in the will.  If no named beneficiaries are living, the probate court has the power to appoint some other suitable person in its discretion.

While it may “be an honor just to be nominated,” it bestows no legal power on an executor until the probate court acts on the nomination.

The mishandling of a decedent’s assets before appointment will likely result in civil liability to the creditors or beneficiaries of the estate.  The whole process of the formal appointment of an executor makes sure that the estate assets are administered correctly and that the rights of beneficiaries are protected through court oversight. It is important to consult with a trusted probate attorney before asserting any control over a decedents assets. Laribee & Hertrick, LLP can provide that service.  
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This article is intended to provide general information about the law. It is not intended to give legal advice.  Readers are urged to seek advice from an attorney regarding their specific issues and rights. To contact an attorney at Laribee & Hertrick, LLP, request more information about our legal services today.


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