Over the course of my career, I have drafted thousands of last wills and testaments for clients. As time passes, some of those clients have passed on and their family members have come to me for advice in administering their deceased family member’s estate.
The process of administering an estate is called “estate administration.” Some people refer to it as “probate,” but this is really a misnomer. The process of submitting a decedent’s last will and testament to probate is one small part (perhaps the smallest and most easy part) of estate administration.
The administration of an estate might take anywhere from one to two years. At a minimum, an estate should probably take nine months to administer. Estate administration is really about winding down the financial affairs of the decedent—closing out his accounts and paying any debts he, or his estate, may owe.
Frequently a family member will come to my office for guidance on how to administer an estate. Of all the advice I give (estate planning advice, Medicaid planning advice, guardianship advice), I find giving advice on estate administration during the initial consultation to be the most difficult to explain. This may be because most of the tasks an executor needs to accomplish aren’t legal in nature and simply require leg work.
For instance, if I were to explain to a person how to open an estate account, the task might sound difficult, but we have all opened bank accounts in our lives and opening an estate account is little different from opening a personal bank account. I think people are intimidated by the concept of estate administration and that intimidation causes them to lose track of the fact that most estate administration tasks are tasks we have all already done several times for ourselves (open bank/brokerage accounts, close accounts, sell a home, etc.).
If I were to explain how to open a personal bank account to you and you thought you needed to pay attention to what I was saying because it was something you never did before, you would probably be confused by what I was saying. It isn’t the task, it’s the fear of the unknown that is confusing.
When I tell people to bring the original Will, original death certificate, and a checkbook (it costs about $150) to the Surrogate’s office to submit the Will to probate, you would think I was describing how to diffuse an active bomb. But probating a Will is so simple it would actually be difficult to do it incorrectly, because quite frankly, you aren’t doing anything other than taking the original Will, the original death certificate, and a checkbook to the Surrogate’s office. The people at the Surrogate’s office do the rest for you.
In fact, it is so simple that I never go with client’s to submit a Will to probate, because I know that after the client has done it, they would be mad at me for billing them for my time to accompany them to the Surrogate’s office.
Now, this is not to say that you do not need the advice and counsel of an attorney in handling an estate. Sometimes you do.
I tell clients that if a death tax return (such as a New Jersey estate tax return or a New Jersey inheritance tax return) needs to be filed, then you need the help of an attorney. If you need to account to the beneficiaries, then you need the help of an attorney. Now, some families get along splendidly, and even though the executor should account, the family doesn’t want an accounting from him.
If you think you can handle the estate but you would simply feel more comfortable with an attorney providing advice to you along the way, then you can (it is your right as executor) and should hire an attorney.
An attorney can be a valuable resource to an executor over the year or two it takes the executor to handle properly the affairs of the decedent. I firmly believe that a great many estates are mishandled and the executor and beneficiaries may or may not ever know the estate was mishandled.
Having an attorney provide advice along the way can be very helpful, but estate administration is a process. It does not lend itself to quick advice that can be rendered during the course of a brief consultation with an attorney.
Many families assume estate administration is little more than paperwork and signatures. In reality, deadlines, financial obligations, family dynamics, and legal requirements can quickly turn a straightforward estate into a complicated process if important details are overlooked.