When someone becomes incapacitated or passes away, you may find yourself in charge of administering a trust, or the decedent’s estate. You may have been nominated as successor trustee through a Trust, the personal representative (executor) through a Will, or the court may have appointed you to administer the estate. Here are a few important things to remember:
Personal Representative: As the personal representative of an estate, you will be responsible to collect the property owned by the decedent, notify creditors and heirs or devisees, pay debts and taxes, finalize the decedent’s business affairs, file all documents required by the court and governmental agencies, transfer decedent’s property, and close the estate or probate when everything is complete.
Once the court has appointed you as the Personal Representative, you can act on your own without the approval of the court; however, you will need to keep the court informed of progress by filing all required documents. If an interested person thinks you are not doing a good job, that person can petition the court to remove you as the Personal Representative or ask the court to supervise your administration of the estate. Supervised administration involves the highest level of court oversight and is usually granted only when there are serious concerns about your actions as Personal Representative.
Trustee: As the Trustee of a Trust, you must keep trust assets separate from your own personal assets, treat beneficiaries equally unless the trust directs otherwise, keep accurate records, file tax returns, and report to beneficiaries as required by the trust and the law. You must know the terms of the trust, where assets are held, and when distributions can be made. Trust assets should be invested in a prudent manner that will effect reasonable growth with minimum risk. It is important to remember the assets of the Trust are not your assets and you cannot use trust assets for your own benefit unless the trust authorizes you to do so.
If you are the Trustee due to the Grantor (or Trustor’s) incapacity, you must also make sure the Grantor is provided for, understand insurance benefits and limitations, apply for disability benefits, notify banks and other financial institutions or advisors, pay bills, and keep accurate records and accounting.
Administering the terms of the trust and meeting obligations while maintaining proper reporting can be overwhelming. You do not have to accomplish this on your own. You should retain an experienced attorney to help you through the administrative process. An important thing to remember whether you are serving as Trustee or Personal Representative is that you have a duty to the creditors and beneficiaries. If you breach your duty, you could be held personally accountable for the breach which is why it is important that you retain counsel to assist you with the administration process.
JensenBayles, LLP provides a broad spectrum of legal services. Thomas J. Bayles has been actively providing advice in the areas of trusts, wills, probate and tax planning in the St. George area for over 15 years. Please visit our web site www.jensenbayles.com or call 435-674-9718 and ask for Thomas J. Bayles or Phillip G. Gubler. The information in this article is for educational purposes only and is not intended to be construed as legal advice