In estate planning, the executor, or personal representative, is responsible for managing the administration of the estate after an individual passes away. An executor may be a person, a professional, or an institution. Their duties include applying for probate, managing assets in probate, paying creditors, 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 lawyer. 

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 and the state laws where the decedent lived. The complexity and duration of probate can vary greatly from state to state.  

In Vermont, the probate process typically lasts at least a year until all the assets are distributed and the matter is closed. 

Fiduciary Role of the Executor 

The executor has a significant responsibility to act in the best interest of the estate’s heirs and beneficiaries. This duty, known as a fiduciary duty, is a crucial aspect of their role. Understanding this duty is essential for both the executor and the heirs, as it can impact the probate process.  If the executor also happens to be a beneficiary, he or she cannot give himself an advantage over the position of other beneficiaries. For example, buy real estate in the probate estate for a discounted price without the authorization of the other beneficiaries. 

Fiduciary Role of a Probate Attorney 

Does the lawyer owe a fiduciary duty to the heirs of a probate estate? It depends on the state in which the estate is being probated. 

Only a few states require the lawyer to meet the same fiduciary duty to the estate heirs as the executor. In these states, the executor owes a fiduciary duty to the heirs, and the lawyer owes a fiduciary duty to the executor. Therefore, the duty flows from the executor to the lawyer. 

Most states, however, take the position that the lawyer doesn’t owe a fiduciary duty to the estate heirs. These states view the fiduciary duty owed by the executor to the heirs as unique from the fiduciary duty owed by the lawyer to the executor. Also, these states want to maintain the executor’s ability to have protected communication with the attorney. In other words, the attorney represents the executor. 

The Probate Process 

Understanding and navigating the ins and outs of probate court, whether you are the executor or an heir, can be daunting.  

For more information on how we can help you alleviate some stress from being an executor, don’t hesitate to get in touch with our office. Our office handles probate matters across the state of Vermont, especially with our hearings being held virtually.