I’m the Executor

Do I need to Hire a Lawyer? 

by Jody Pihl, Lawyer and Mental Health Advocate at Pihl Law Corporation

When someone dies, his or her estate needs to be managed. If the deceased had a valid Will, the named Executor may accept the responsibility to “administer the estate” which involves gathering the deceased’s assets, paying the deceased’s debts and taxes and then distributing the remaining assets as set out in the Will.  Quite often, in order to administer an estate, an Executor must go through the probate process in order to gain legal control of the deceased person’s assets.

Probate is essentially the legal process where a will is “proved” in a court and to formally recognize the Executor as the legal representative of the deceased’s estate. While it may sound straight forward and perhaps a task that can be completed by oneself, the probate process is far from simple and taking this task on as an Executor carries significant legal responsibility. Done improperly, administering an estate can create personal liability for the Executor.  Understanding and navigating the probate process without legal assistance can be a confusing and timely process, with plenty of room for error. The last thing anyone needs after losing a loved one is to receive the burden of extra stress surrounding legal issues. Having an estate lawyer assist with the probate process can eliminate unnecessary errors and guesswork and reduce the overall time of the process involved.

As an estate lawyer I also know how important it is for Executors to understand that by law Executors do not pay personally for the legal services expenses for probating the estate. The reasonable costs of administering an estate, including related professional services including legal fees and accounting fees, is paid for by the estate.

There is a long list of reasons to seek legal advice as an Executor, and to seek advice from a lawyer that practices in the area of estate administration, as this area of law requires specific knowledge.  Some of the most critical reasons to hire an estate lawyer to help are listed below.

1. Avoid family conflict when probating estates.

One of the most common situations to arise when it comes to probating an estate without legal assistance is family conflict. It’s natural for those who were associated with the deceased to want to be included with the probate process, but the interference of anyone other than the executor and a lawyer can result in tension, anger, hurt, confusion and resentment. Having a lawyer carry out the probate process is the best way to eliminate the potential for frustrating or hurtful situations and gain clarity in areas of the will that may otherwise be difficult to understand. It also decreases the risk of a beneficiary or someone who thinks they are or should be a beneficiary from thinking that you are not dealing with the estate properly.

2. Gain access to the estate quicker.

Probating an estate can take more than a year. The quickest one can expect an estate to be probated is three to four months. The Executor of the will does not gain instant access to property, estate beneficiary life insurance policies, investments or bank accounts without a probate. Hiring a lawyer to probate an estate can help speed up the process.

3. Avoid claims against the estate.

Upon the death of a loved one, there may be beneficiaries who wish to make claims against the estate. This situation arises commonly when a spouse or loved one who was not mentioned in the estate feels they should be. These claims also arise when a beneficiary believes that the estate is not being distributed properly. When a lawyer is involved in distributing an estate, there is not the appearance of personal gain that a family member may have.

4. Avoid initial rejection of estate.

In order for an estate to be probated, the courts require specific documents to be filed. This information must be set out in very specific forms in a very specific manner. Without these documents in place, the initial probate of the estate may be rejected. Having a lawyer assist you in the probation of the estate will ensure the timely and correct submission of all documents required by law, while preventing a tedious and time-consuming task from needing to be done twice (or even three or four times).

5. Get your questions answered.

Are you unsure of who you must notify of the deceased’s passing? Confused at which assets require probate and which do not? Are there outstanding bills that must be paid from the deceased’s estate or other unexpected complications that are keeping you up at night? If an estate is not distributed properly, the executor can be held personally liable. Not only will you receive answers to these crucial questions, but sound advice for your next steps when you hire a lawyer to probate an estate.

6. Become aware of all debts and expenses.

Although finances aren’t the easiest situation to handle on behalf of another person, it’s a responsibility that simply must be taken care of. The time spent dealing with debts or other expenses such as accountants and ongoing expenses, will depend entirely on the deceased’s financial situation. Income taxes, funeral costs, outstanding bills and personal loans are a few examples of other common debts that require attention upon the passing of a loved one. Most often the costs can be taken from the estate, but each situation is unique and requires the advice of a lawyer to ensure appropriate measures are taken.

7. Resolve debts and expenses correctly.

Without a lawyer on your side to help resolve all debts or expenses, it’s possible that you may end up overpaying, underpaying or overlooking an important financial detail that requires attention.  Furthermore, creditors are required to be notified of the passing of a relative, which usually involves presenting a death certificate and/or other legal documents. Since debts and expenses can be a widely confusing and grey area, it’s best to hire a lawyer to probate an estate for you from the beginning, so you have a clear idea of the financial situation at hand.

8. Avoid family probate lawsuits.

Unfortunately, if there’s tension or disagreement amongst family members, it can result in a probate lawsuit. An estate lawsuit is not only costly and time consuming, but emotionally taxing. Having a lawyer probate an estate may prevent an ugly court battle between family members down the road.

9. Support for the executor.

The Executor of an estate is left with several responsibilities, and the tasks at hand will vary depending on the responsibilities of the deceased. Not only is the Executor responsible for reading the will, contacting beneficiaries and potentially mediating between family members, but also dealing with other time-consuming tasks and tying up loose ends relevant to the deceased. For this reason, it’s invaluable to have the support of a lawyer to offer you direction and guidance in seeing these responsibilities through.

10. Avoid unnecessary delays.

Without a validated will, it’s possible for third parties (such as banks) to deny access to the Executor for lengthy periods of time. Hiring a lawyer to probate an estate can avoid the headache that ensues with communication between financial institutions, government agencies or similar authorities.  When considering hiring a lawyer to probate an estate, it’s true that you have a choice to also carry out the task yourself. But as you can see, with such a great deal of responsibility at hand, it may be worth considering simply to avoid unnecessary stress and wasted time.

Probating an estate can be difficult. You are not alone. The estate is permitted to hire a lawyer to probate the estate and the estate will be responsible for the cost, not you as the Executor.

Jody Pihl leads the Wills and Estates department as Senior Counsel at Pihl Law Corporation. For more information on estate administration, contact Jody Pihl at lawyers@pihl.ca.

Leave a Reply

Your email address will not be published. Required fields are marked *