An executor’s duties when a will is contested

| Jan 27, 2020 | Estate Administration & Probate |

Being the executor of an estate in Michigan is usually a straightforward process. The executor must file the will in probate court and notify all the beneficiaries. If someone challenges the will, the process becomes more complex. A contest has to be filed within a certain amount of time. When this happens, the executor should contact the attorney who prepared the will since this person can be an important witness.

The attorney cannot act as defense counsel as well as witness, so the executor will need to contact another attorney who can, even if it is another attorney in the same office. An executor is not required to pay for the defense. These costs come out of the estate unless it is found that the executor has in some way acted in bad faith.

With the attorney, the executor should then locate witnesses who can testify about the person’s mental condition. This might include any witnesses to the will, the person’s physician, friends and family. The executor should also begin locating all the estate’s assets. An attorney can help with this as well. Lack of capacity and undue influence are generally the two reasons given for challenging a will. Expert testimony and financial records may be part of the case.

Even in cases that do not involve challenges to the will, an executor may want to hire an attorney for assistance in estate administration to ensure that the process is done correctly. Being an executor requires a person to be reliable and organized. People who are creating an estate plan may want to work with an attorney as well since this might reduce the likelihood of errors that could make it more vulnerable to challenges. For example, an attorney may help ensure that the legal language used in documents is clear and correct.