Whether an executor needs to hire an attorney depends on the type of assets, size of the estate, family dynamics, estate tax considerations, and outstanding bills. As a fiduciary, an executor can be held accountable for any gross negligence, waste or mismanagement of the estate. Therefore, not only does serving as executor requires a significant amount of time and energy, but can become a liability.
Does the Will Need to be Probated?
The assets that pass through a Will are those in the deceased’s sole name with no beneficiary or joint owner. Retirement accounts, life insurance policies, and living trusts with designated beneficiaries pass directly to the beneficiaries. Any bank accounts or real estate owned jointly do not pass-through probate. None of these assets need to be probated. So, even if the decedent left a Will naming an executor, probate may be unnecessary. In this case, no attorney is needed.
What Happens in Surrogate’s Court?
When a person dies with a Will, the nominated executor must file a probate petition with the Surrogate’s Court in the county where the deceased resided. The executor files the original Will and a certified copy of the death certificate with the probate petition in Surrogate’s Court. Notice needs to be given to the decedent’s next-of-kin – anyone who would have inherited had there not been a Will. These relatives will either sign waivers or issued a citation to appear in court. At the court date, they will have the opportunity to object to the executor and the Will. There are affidavits regarding assets and liabilities and family trees that may be necessary.
The Surrogate’s Court validates the Will and officially appoints the executor. Only then is the executor able to distribute the property left by the decedent. After addressing all issues with the Will, the Surrogate’s Court issues a decree granting probate and Letters Testamentary. These “letters” give the executor authority to marshal the assets, pay any debts, and distribute the assets according to the terms of the Will.
Why Does an Executor Need an Estate Attorney?
The probate process can be highly technical and archaic. The Surrogate’s Court may request additional documentation and challenging legal issues may crop up. What happens when an estranged family member starts asking questions? Who needs to be noticed? The presence of an attorney can be a needed salve in times of grief and could even stave off litigation.
After the letters are issued, the executor must get an Employer Identification Number and open an estate account. The executor must collect all the assets, file an inventory with the court, and pay all credible bills in the correct order. Transferring ownership of more complicated assets such as businesses or real estate is far from straight-forward. The executor has to time distributions and may need to provide a detailed accounting to beneficiaries.
Depending on the size of the estate, an executor made need to file an estate tax return with the IRS. Having an experienced attorney is crucial so that the estate tax return is filed timely and properly. An experienced estate team can ensure all available deductions and credits are utilized to minimize the estate tax owed. The executor is also responsible for filing the deceased’s last income tax return.
An experienced estate attorney can protect the executor and beneficiaries. An executor is tasked with safeguarding estate assets and is liable for any errors. The term “penny wise pound foolish” comes to mind when an executor unfamiliar with the process tries to administer all but the simplest estates. We recommend an executor consult an estates attorney at the onset to determine if the estate will be complicated. However, it is never too late – if problems arise do not hesitate to contact us.