Should an Executor Obtain Legal Counsel?

by Ted Ricasa on Apr 20, 2014

legal counsel for executorThe decision to name you as executor of an estate suggests faith in your ability to manage affairs honestly and capably. The task at hand should not be taken lightly, and you will be held responsible for executing the requirements outlined in the last will and testament, as well as distributing assets of the estate. In the absence of a will, you will also oversee the identification, valuation, and distribution of assets among rightful beneficiaries. For someone who lacks detailed knowledge of accounting, real estate, and estate law, hiring an attorney is the smart move.

Emotional and Ethical Challenges as Executor

When an individual passes away, tension and emotions run high for weeks or even months, especially when multiple beneficiaries stake claims to the estate. The beneficiaries may not feel that the distribution is fair, and it is not uncommon for executors to face a barrage of wheedling, bribing, and threatening from heirs. If you are a relative of the decedent, you may find it difficult to separate your own interests from those of others. Because you are legally responsible for managing the estate, you must remain impartial to your needs and the needs of beneficiaries; your obligation is to the decedent’s estate alone. Time that you could use to grieve properly will instead be consumed by conducting the affairs of the estate. If the estate includes real estate and there is no will and testament, assets will go into probate, which lasts months and sometimes years.

Responsibilities as an Executor

The amount of documentation required of an executor is staggering and includes invoices, account statements, billing information, and records of estate expenses. You would use this information to prepare and file state, federal, or both tax returns on behalf of the estate. Other responsibilities include:

·      Planning the funeral

·      Gathering documents

·      Notifying the decedent’s creditors

·      Secure assets after freezing accounts

·      Redirect all personal mail

Although the process is time-consuming and stressful, you have no guarantee that you will receive compensation as executor. An exception is when the decedent’s last will and testament stipulates payment for the executor’s time and efforts.

Because so many complex legal and financial requirements are at play here, seeking legal counsel is the most logical course of action. As executor, you have a legal obligation—not just personal—to fulfill on behalf of the estate. Whether deliberate or accidental, a simple error, moment of poor judgment, or oversight could spell disaster, and you alone will be held accountable.

Your counsel will answer questions, make recommendations, and help you to avoid claims of favoritism or questionable decision-making. This is especially important in contentious situations with family conflicts. You will no longer bear the burden on your own, and you will have more time to recover from your loss. In most cases, attorneys’ fees are paid by the estate, not from the executor’s own pocket.

Some states allow the executor to sell property while the estate is in probate. Valuing and disbursing assets, especially for big-ticket items like real estate, is one of the most time-consuming steps in the process. As a result, many executors choose to go through with a short sale to save time and reduce expenses. Your attorney will help you to determine whether this is a viable option.

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