A client of mine came to me and had some concerns and needed my help. Her mother had passed away, and my client was worried that her brother was acting inappropriately with her mother’s assets. When she had spoken to the brother about what was going on, she was told, “Well, I’m the Executor, and I’m in charge.”
In talking with my client further about the matter, I learned that her mother had died only about a week earlier, and that nothing had been started yet in Probate Court. There had not yet been any estate opened, and nothing was even in the process of being done. In this situation, although the brother thought he was the Executor and was therefore in charge, there was not yet any Executor of the estate – in fact there was no “estate” opened yet.
All of this flows from the common misconception of when a person is the Executor, and the process for how a person becomes the Executor of the Probate estate. An Executor is the person who is given authority to act on behalf of a decedent’s estate by the Probate Court. Until the Letters of Authority are issued by the Probate Court appointing the person as the Executor, there is no Executor. Until the Letters of Authority are issued, no one has authority to act on behalf of the decedent’s estate. The confusion usually originates with the fact that a person is nominated to serve as the Executor in the decedent’s Will. However, a Will does not take effect until a person dies, and it is only acted upon in Probate Court. The nomination of someone to serve as Executor is merely exactly that: a nomination. It is the statement of the decedent that they would prefer that this particular person be the Executor of their estate. It is not the appointment of the person as Executor, and does not grant any authority to that person. Only the Probate Court can grant that authority, and that authority can only be granted when the proper applications and supporting paperwork are filed in the Probate Court.
If you would like more information about being an Executor of an Ohio probate estate, we have a free guide called “You’re Named the Executor. Now What??” that we would be happy to send you. Just click on the Contact link above and send us your request.