Question: My uncle died and named me as his executor, do I need to retain a lawyer?
Answer: While it is not required to hire a lawyer to represent the executor of an estate, it is often a good idea to seek representation. We all know that estate planning lawyers assist with how real property, cash, investments, personal property and other assets will be distributed after death. This can be done by creating wills and trusts, through beneficiary designations and joint ownership of property. Depending on the type of assets, value of the assets, and who and how many are named as beneficiaries, it may be prudent to have legal advice as you navigate through.
There are many steps associated with the administration of an estate to manage the assets and liabilities of someone who has died. This involves gathering the assets of the estate, paying the decedent’s debts, filing tax returns, and distributing the remaining assets to beneficiaries.
But before getting to the work of the estate, there needs to be an identification of who is responsible. This is the “fiduciary.” When there is a will that requires probate, this is an executor appointed by the Surrogates Court. An estate attorney can assist with the court filings required to probate the estate and appoint the executor. If the assets are held in a living trust, there is a trustee appointed through the document, this does not require approval of a Court. If all assets have a beneficiary designation or joint owner, there will be no executor or trustee, no person will be responsible for the estate as a whole. The work of a fiduciary will differ for every estate. In almost all situations there is a clean out of the primary residence, a collection of assets, payment of debts, filling of income taxes, and accounting to beneficiaries.
Prior to making any final distributions, the beneficiaries of the estate are entitled to receive and review an accounting prepared and provided by the fiduciary for the estate. The accounting reports to the beneficiary the assets of the estate, the income collected since death, the expenses, debts and claims that were paid on behalf of the estate, and the amount and value of funds that ultimately remain on hand to be distributed to the beneficiaries. Once the accounting is approved, the ultimate distribution is made in accordance with the distribution set forth by the deceased person or, in the absence of a will or trust, as provided by the laws of intestacy.
The beneficiaries of the estate generally have questions regarding the transactions of the fiduciary. It is important that the fiduciary respond and address any concerns the beneficiary may have regarding the administration of the estate. After explanation and substantive discussions, most accountings are approved by the beneficiary and the estate fiduciary can proceed to the next and likely final step of making final distributions.
Many that serve as executor or trustee are doing so for the first time. Being guided and advised by an attorney can ensure there are no missteps in handling the estate. Beyond the regular responsibilities there can also be conflict between the fiduciary and beneficiaries. The fiduciary should certainly retain an attorney to handle such conflict, especially if it rises to the level of court proceedings. This can come in the way of objections to the will itself, objections to the executor being appointed, or objections to the accounting presented to the beneficiaries.
By Britt Burner, Esq.
Britt Burner, Esq. is a Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Elder Law. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.