Tillem & McNichol

Len Tillem and Rosie McNichol

Dear Len & Rosie,

My wife’s father passed away recently and she and her siblings are not on best terms.

They would like to see if there was a will but don’t know how to locate the executor. Her father had told her it was someone outside the family.

How does one find out who the executor of a will is, and for that matter, how does the executor find out someone has died?

Marco

Dear Marco,

You’re looking for a needle in a hay stack. Your father-in-law’s will, assuming he made one, could be anywhere.

He could have named anybody as executor, but it’s more likely than not that he named one of his children, or maybe one of his friends. Ask his friends discretely, if you know who they are.

It is also possible that your friend named his lawyer as executor, but this is not very likely.

Attorney fees in probate are fairly lucrative. A lawyer for a $500,000 estate earns $13,000 in statutory lawyer fees, the same as the executor.

But if the lawyer also serves as executor, he or she gets paid only once. Double dipping is not allowed.

Most attorneys decline to serve as executors for the simple economic reason that there’s nothing in it for them.

You also touched on the problem of an executor learning of the death. If the executor isn’t close to your father-in-law, how’s he or she going to know?

Consider that your father-in-law’s executor may not actually know that he or she is named as executor in the will.

Did your father-in-law even inform this person? For all we know, your father-in-law’s will may be gathering dust in an attorney’s filing cabinet.

What you should do is to contact the county bar association where your father-in-law lived. The county bar can send a blanket email to all of its trusts and estates members to see if any of them created the will.

You may also have to sort through your father-in-law’s belongings to see if there is a copy of a will lying around, or maybe even a canceled check made out to a local attorney.

If you can’t find a will, then the estate will pass by intestate succession equally among your father-in-law’s children, with the share of an already deceased child passing to his or her living descendants, assuming he wasn’t survived by a spouse.

Any of the children may petition the court to be appointed as administrator of the estate, which means this could lead to a fight over who gets to be administrator.

This is a cautionary tale. Many people want to keep their estate plans confidential, but they should not be too secretive.

Some of you may go so far as to make extra copies of your wills and trusts and pass them out to your children.

If you don’t want to do that—if you wish to protect your privacy—then just give your children or other beneficiaries your attorney’s business card with a note telling them to contact the attorney upon your death or incapacity.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 707-996-4505, or at LenTillem.com. Len has a new video channel on YouTube.

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