An executor is responsible for managing the administration of the estate after an individual passes away. An executor may be a person or an institution. Their duties include filing for probate and ensuring that the heirs receive assets according to the deceased person’s wishes. When an estate needs to go through the probate process, the executor is also the one who hires a probate attorney.
What Is Probate?
Probate is a standard legal procedure formalizing how some assets pass from decedents to their chosen heirs. Whether or not probate is necessary depends in part on the type of property as well as how it is held. While probate can be a complex process for vast estates, it’s often a simple formality for most. Essentially, probate allows a judge to give legal permission for assets to pass pursuant to a will.
The Role of the Probate Attorney
Whether you are an executor or an heir of the probate estate, knowing the probate lawyer’s role is essential. Consider it one of the first steps you should take at the beginning of the probate process. One of the biggest sources of conflict in probating an estate is understanding the role of the probate attorney.
Many executors don’t understand the probate process and end up leaving all the tasks up to the lawyer. Meanwhile, the heirs of the estate may hear the executor say, “This is what the lawyer says we have to do.”
An executor has an obligation to act in the best interest of the estate’s heirs. This means the executor is acting in the role of a fiduciary. If the executor owes a fiduciary duty to the heirs of the estate, then does the lawyer whom the executor hired also owe a fiduciary duty to the heirs? The answer to that is typically no. In New York, the probate attorney hired by the executor represents the executor, and not the heirs (unless the executor is the heir), and is not themselves a fiduciary. The heirs can hire their own attorney to represent them if they desire, but that is not common unless there is a dispute.
Fiduciary Duties of the Executor
It’s helpful to have an idea of some common activities created by fiduciary duties in the context of probating an estate:
- Duty to communicate: This includes notifying the heirs that the estate exists and providing them with information about the estate. (Note that this isn’t the same thing as an attorney-client relationship; no attorney-client privilege exists.) An executor who maintains open communication can also better avoid any claims of favoring one heir over another.
- Duty to account: The executor is legally responsible for providing an estate accounting. This includes explaining funds paid out of estate accounts for expenses and maintaining detailed documentation.
- Duty to treat all beneficiaries impartially: The executor must not favor one beneficiary over another, and typically must make distributions to all at the same time.
Starting the Probate Process
If you are the executor hiring the attorney, it is important to hire an experienced probate attorney. If you are an heir of a loved one’s estate, the probate attorney may not represent you, but may be able to provide you with information that an heir is entitled to. Everyone’s goal should be for the settling of the probate estate to go smoothly. Understanding the probate lawyer’s role will go a long way toward achieving that goal.
It can be daunting to understand and navigate the ins and outs of probate court, whether you are the executor or an heir. Having trust and confidence in the legal professionals with whom you are working is essential. Contact the experienced attorneys at Kurre Schneps today to find out how we can help.
