One of the most common questions that arise during this process is whether an attorney can be appointed to serve as the fiduciary (i.e., the executor or administrator). The short answer is yes, but there are some important factors to consider before making this decision. In this article, we will explore the pros and cons of hiring an attorney as the executor or administrator of an estate.
Pros of Hiring an Attorney as the Executor or Administrator
- Legal Expertise: Attorneys have a deep understanding of probate law and can navigate the legal complexities of the estate administration process. This can be particularly helpful if the estate is large or complex.
- Reduced Burden on Beneficiaries. The fiduciary is responsible for gathering estate assets. This involves visiting banks, calling pension fund companies, preparing tax returns or retitling automobiles. The attorney acting as the fiduciary would be responsible for taking these actions, which relieves the beneficiaries of learning a new process.
- Impartiality: An attorney serving as the executor or administrator can remain impartial and make decisions based solely on the best interests of the estate. This can be especially important if there are conflicts between the heirs or beneficiaries of the estate.
- Liability Protection: By appointing an attorney as the fiduciary, the estate can benefit from the protection of the attorney’s professional liability insurance. This can provide an extra layer of protection for the estate and its beneficiaries.
- Reduced or Eliminated Up-Front Cost: If the estate has liquid assets, the attorney can use the estate’s funds in the bank as security for payment of the costs and attorney fees, and usually doesn’t need a large deposit from you to open the case. By contrast, an attorney who is merely representing an executor is relying on the executor to properly distribute the funds, and therefore some attorneys require a deposit up front to guarantee the executor’s performance.
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Cons of Hiring an Attorney as the Executor or Administrator
- Cost: Hiring an attorney to serve as the executor or administrator can be more expensive than appointing a family member or friend to serve in this role. Attorneys typically charge a fee for their services, which can be a percentage of the estate’s value or an hourly rate. However, the cost difference between appointing the attorney serve as fiduciary versus simply representing the estate is usually negligible, so if you were thinking of hiring an attorney anyway, it might be advantageous to have the attorney serve as the administrator as well.
- Lack of Personal Connection: An attorney may not have the same personal connection to the deceased person or their family, as compared to a family member or friend who is appointed as the executor or administrator. This can make it more difficult to understand the wishes and desires of the deceased person and their family.
- Restricted Powers: If the decedent died with a will, the executor appointed in the will usually has special powers that the court will recognize. If the attorney is not named as the executor in the will, the attorney will need to post a fiduciary bond (an added cost to the estate) and obtain probate court approval to sell real estate or personal property.
In conclusion, hiring an Ohio probate attorney to serve as the executor or administrator of an estate can be a good option for some families, but it is important to carefully consider the pros and cons before making a decision. If you have a situation you’d like to discuss with an Ohio probate attorney, it may be helpful to book a free 15-minute phone call to talk over your case and determine the best course of action. With the assistance of an experienced Ohio probate attorney, you can navigate the complex estate administration process with confidence and peace of mind.