For anyone familiar with the various twists and turns involved in the typical probate process, it probably seems odd to discover that so many estate executors fail to retain an attorney to help them probate the will. Often, those executors are either uninformed about the obstacles that they may face as they set out to settle their loved one’s estate. At other times, executors are just trying to be frugal to preserve as much of the estate as possible for the decedent’s heirs. Regardless of the reasoning, executors who try to facilitate the probate process without a probate lawyer by their side could be making a grave mistake.
The Duties are Many
To understand why professional assistance can be so critical to successful settlement of any estate, just consider the many responsibilities facing any executor. After the decedent passes away, the executor must begin by contacting the probate court to be recognized as the estate’s personal representative. That requires that he provide that court with the original will, death certificate, and petition to be named as the personal representative. Once that authority is granted, the probate process begins. From that point on, there are a host of duties that must be performed to ensure that the estate is properly settled:
- The executor must provide notification to all interested parties, informing them of he has been authorized to serve as the estate’s personal representative. Notice must be provided to the deceased’s heirs and the trustees of the decedent’s trusts, if any exist. Notice will also need to be provided to all known creditors so that they have an opportunity to levy claims against the estate for any debts owed to them. In addition, notice will need to be published in the newspaper, to alert any unknown creditors.
- Assets need to be identified, secured, and inventoried. This must all be done within three months after the decedent passes away. The inventory should include not only a description of the assets, but an estimate of its worth. The executor is free to hire an appraiser to assist in this part of the process, at the estate’s expense. That inventory then needs to be delivered to all beneficiaries of the will.
- Creditor claims need to be evaluated to determine their merit, and valid debts should be paid using the estate’s assets. If certain assets need to be sold to raise capital for the payment of debts, that needs to be done in a timely manner as well.
- Taxes need to be calculated and paid. That includes state and federal income taxes, as well as any estate tax that may be due.
- Once debts are paid, the executor must notify the court so that it can approve the release of inheritances, in accordance with the terms of the will or the state’s intestate succession laws.
- A final accounting is then provided to the court, along with a request to formally close the estate. Once that happens, the probate process is concluded.
Of course, those are just the main tasks that every executor must perform. There are also a host of seemingly minor tasks that must be dealt with at every step of the process. A bank account needs to be created, and some assets may need to be liquidated to free up money to pay bills, debts, and taxes. Other assets may need to be invested under certain circumstances. Business affairs may need to be managed. In some cases, family allowances will need to be addressed to ensure that dependent survivors are not left destitute while they wait for probate to be completed.
Throughout it all, the executor owes a fiduciary duty to the estate’s beneficiaries. That requires him to exercise sound judgment, diligence, and good faith in all his actions. He cannot be negligent in his duties, engage in any self-dealing that might enrich himself at the expense of the beneficiaries, or put the estate or its assets at unnecessary risk. That’s a lofty standard to meet, and it requires at least some familiarity with the law if you want to avoid mistakes.
Can Your Attorney Help?
The important thing to remember is that your executor duties are not something that you have to deal with on your own. While simple estates with no debts can often be probated without problems, more complex estates can present a whole host of unforeseen challenges. And because you have a fiduciary duty to those heirs, you may also be exposed to personal liability for any failure to meet that duty. That means that any mistakes you make that cause the estate to lose value, or otherwise harm the beneficiaries, could leave you open to a lawsuit that targets your own personal assets.
To avoid that liability, you need to avoid mistakes – and that means having access to professional help that can aid you in successfully meeting your responsibilities. You can hire an appraiser to help evaluate asset values. You can hire an accountant to help you keep accurate records. Most importantly, you can hire a probate attorney to help you ensure that every aspect of the probate process is completed in accordance with the law and your fiduciary responsibilities. Even if you want to avoid spending estate funds on such assistance, it’s often vital to do so to protect the interests of everyone involved – including yourself.
A competent and experienced probate lawyer can help you to navigate the probate process in a way that ensures that no mistakes are made that might jeopardize your personal interests. He or she can provide as much or as little assistance as needed. At Biddinger, Bitzer & Estelle, PLLC, we know how important it is to ensure that your service as the executor of an estate doesn’t turn into your own personal liability nightmare, and we can help you to avoid any potential problems. If you’ve been appointed to serve as an executor and are interested in learning how you can benefit from having professional assistance with those responsibilities, contact us through this website or give us a call at (989) 872-5601 today.