Probate? Trust Administration?

Professional Guidance Through Estate Administration

Edited by Rory Clark

Estate administration, also known as probate, is the process of passing a decedent’s property to a named beneficiary or lawful heir. Suppose you have been designated to handle the affairs of an individual who has died, or you are managing the assets of a trust for the benefit of specific individuals or charities. In that case, the laws of every state require you to fulfill your duties as a “fiduciary.” A fiduciary is bound to administer the trust placed in him or her faithfully. Failure to do so can result in personal liability to the fiduciary.

Responsibilities and Emotions

The emotional trauma caused by a close family member’s death is often accompanied by confusion about the financial and legal actions that survivors must take. The spouse who died may have handled all the finances of the couple. Maybe a child has to start taking care of the estate he or she knows little about. This role can often fall on top of other family and work responsibilities that can not be set aside. Finally, the estate itself may be in chaos or scattered among many accounts.

Here we set out the steps that the surviving family members should take. These responsibilities ultimately fall to the person who has been appointed executor or personal representative in the deceased family member’s will. Matters can be a little more complicated in the absence of a will. It may not be clear who is responsible for taking on these tasks.

Secure the Substantial Property

This means anything you can touch, such as jewelry, dishes, or furniture. 

You will need to determine each property piece’s accurate values, which may require appraisals. Then distribute the property as the deceased directed. If the property is passed around to family members before you have the opportunity to take an inventory, this will become a difficult task. Of course, this does not apply to gifts the deceased may have made during life. Which will not be part of his or her estate.

Have Patience and Take Your Time

You do not need to take any other steps immediately. It’s more important that you and your family have time to grieve. When you’re ready, meet with an Elder Law attorney to review the steps necessary to administer the deceased’s estate. The exact rules of estate administration differ from state to state. However, in Virginia, they include the following steps:

Filing the Will

You must file the will and qualify at the probate court to be appointed executor or personal representative. In the absence of a will, heirs must petition the court to be appointed “administrator” of the estate.

Marshaling, or Collecting, the Assets

This means that you have to find out everything the deceased owned. You need to file a list, known as an “inventory,” with the Commissioner of Accounts. It’s generally best to consolidate all the estate funds to the extent possible. Payment of expenses and distributions should come from a single checking account. Either one you establish or one set up by your Elder Law attorney so that you can keep track of all expenditures.

Filing Tax Returns and Paying Taxes 

Personal Representatives are responsible for filing the decedent’s final tax return. If the decedent’s estate is large enough, the personal representative may also have to file a state and federal tax return. Suppose the appropriate personal and estate taxes are not paid. In that case, the Personal Representative can be held personally liable if the assets have already been distributed to the beneficiaries or heirs. Tax liabilities, payments, and penalties can be confusing. Don’t try to navigate unfamiliar territory; a certified Elder Law Attorney can help.  

Distributing Property to the Heirs and Legatees

Generally, the executors do not pay out all the estate assets until the time limit has elapsed for creditors to make claims. That may be as long as one year after the date of death. However, once the executor understands the estate and the potential claims, they may distribute most of the assets. They retain the reserve for unforeseen claims and the cost of closing the estate.

Filing a Final Account

The executor must file accountings with the Commissioner of Accounts until all debts have been paid and the estate has been zeroed out. Once the court approves the final account, the estate can be closed.

Who To Contact

At best, the experience can be tedious and extremely time-consuming. At worst, it can be downright confounding. When the individual must also deal with strong emotions and the usual pressures of everyday life, it can be difficult to muster the personal resources, time, and energy to do the job correctly. 

Turning the estate or trust over to The Legacy Elder Law Center for administration ensures that it will be handled with scrupulous professionalism. You can focus on the critical personal issues and leave the details, redundancy, and navigation of the process in capable hands. 

About the author

Rory Clark

Rory has more than 30 years’ experience practicing elder law, estate planning, asset protection, Veteran’s affairs, and special needs planning. Through his personal journey, Rory not only understands the complex legal issues involved as a professional but also the intense emotional issues as a caregiver.