A recent South Dakota Supreme Court case highlights the necessity of appointing a competent and honest executor/ personal representative. On July 27, 2011, the South Dakota Supreme Court released its opinion in Muhlbauer v. Estate of Olson, wherein the executor (known as “personal representative”) sold real estate specifically devised to heirs. The Supreme Court held that the buyers of the real estate were good faith purchases for value and were, thereby, protected by statute.
What this Means for the Decedent, Glenn Olson
The bottom line is that Glenn’s wishes were not carried out. Explicit instructions were included in his will, devising his real property to his heirs.
The executor failed to follow the instructions.
What this Means for the Beneficiaries
The bottom line for the beneficiaries is that they don’t get the real estate that Glenn wished them to have. They have a legal recourse. The beneficiaries can sue the executor for their loss, as an executor is personally liable for negligence and mistakes.
Lessons Learned from the Muhlbauer Case
It is imperative that an honest and competent executor is chosen if you want your wishes to be carried out.
It is helpful to fully understand executor duties before naming a trusted loved one to this role. In addition, it is imperative that the executor be willing to seek and follow professional legal guidance from a qualified estate planning – probate attorney.
- Collecting, protecting, valuing, and managing all assets.
- Following the instructions in the will.
- Following all instructions of the probate court.
- Paying last bills.
- Communicating with beneficiaries.
- Seeking and following advice from professional advisors such as the estate planning – probate attorney, as needed.
- Filing all appropriate tax returns.
- Distributing assets to beneficiaries pursuant to the will upon the acceptance of the tax returns.
Where to Get More Help
Make sure that your appointed executor actually wants to serve. Ask before appointing. If you need assistance choosing an executor, or if you have other estate planning and probate questions, consult with a qualified estate planning – probate attorney.
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