When someone passes away there are typically assets that need to be preserved and eventually transferred (including real estate). In order to officially act on behalf of an estate to transfer assets a person needs to be appointed by the appropriate probate court as either the executor (if there is a will) or as the administrator (if there is no will). The key document that provides power to act for the estate is called letters testamentary or letters of administration (depending on whether there is a will or not). Before receiving this document, no one has power to act for the estate. We refer to executors and administrators collectively as a personal representative.
The appointed personal representative is the person in charge of gathering the estate assets and preserving them in a manner that would best benefit the estate.
If someone is acting like a Personal Representative before being appointed by the court, then they could be liable for any harm caused to the estate under the legal doctrine of executor de son tort. An executor de son tort is a person who wrongfully inter-meddles with or converts property (assets) of an estate. If this conversion is done in bad faith the executor de son tort can be held liable to the heirs or beneficiaries of an estate for double the value of the property.
This is why it is so important to be properly appointed by a Court before transferring any estate asset. Also, the only way to properly transfer title (deed) of real property in through the probate process, unless the property was titled as join tenants with rights of survivorship. It is also important to note that when opening an estate and transferring assets the Executor will have to deal with settling all the debts of the deceased, and those debts must be handled before any distributions to family members can be made (even if there is a will).
Things can get complicated quickly when someone is acting like a Personal Representative without going through the proper process in the probate court. We’ve seen too many times how things can be irreparably harmed when quick action is not taken.
If you’re in a situation like this, reach out to our office for a consultation to see what your options are.
Learn Important Probate Essentials, including key things that go wrong in an estate, how to prevent them, and what to do if they happen.
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