WHO’S IN CHARGE OF MANAGING THE DECEDENT’S AFFAIRS?
During life, the deceased signs deeds or checks. After death, someone must be given the legal authority to act on behalf of the deceased. We refer to this person as the estate representative.
- Did the decedent designate a funeral agent?
- Did the decedent prepare a Last Will and Testament?
- Did the decedent prepare a Living Trust?
- What is there is no Last Will and Testament?
- What if there are no probate assets?
- Must the estate representative hire an attorney?
A. In most states, the decedent had the right to designate a funeral agent. The funeral agent has the legal authority to decide how to dispose of the body and where to bury the remains.
If the decedent named a funeral agent, that person is responsible for carrying out the decedent’s funeral wishes.
If the decedent did not name a funeral agent, state preference laws determine who has the legal authority to dispose of the body.
A. If the decedent left a will, the will nominates someone as the executor of the estate.
The executor should complete an inventory of the estate and determine the probate value of the estate. The executor can then determine what type of paperwork is required to give the executor the legal authority to manage the decedent’s probate assets and administer the decedent’s estate.
If the estate is subject to a normal probate process, the executor should file documents with the probate court requesting the court appoint the excutor as the estate representative. The appointment of the executor is formalized on documents the probate court provides, referred to as Letters. These documents give the executor the legal authority to manage probate assets and administer the probate process.
If the probate estate is considered a small estate , state statutes describe whether the executor can use an affidavit or some other simplified probate procedure to manage the probate assets and administer the decedent’s estate.
Q. What if you can’t find the original copy of the will?
A. It depends on the state where you live. Contact a lawyer to see whether a photocopy of the original will is considered an authentic document. If you can’t find the will or the will is not an authentic copy, the estate representative uses the rules and procedures for someone who died without a will.
A. If the decedent left a trust, the trust names someone to serve as a Successor Trustee.
The successor trustee has the immediate authority to manage the decedent’s trust assets.
A. If there is no will, the decedent died intestate. When someone dies intestate, preference laws in each state determine who should serve as the estate representative. The estate representative is referred to as a personal representative, not an executor. The personal representative has the same duties and responsibilities as the executor in managing probate assets and administering the probate paperwork.
A family member should calculate the probate value of the estate.
If the estate is subject to a normal probate process, a family member must file paperwork with the probate court requesting the probate court appoint a personal representative. The court then provide s documents formalizing the appointment of the personal representative and giving the personal representative the authority to manage the decedent’s estate.
If the estate qualifies as a small probate estate, a family member can complete the paperwork needed in the state giving the estate representative the authority to manage probate assets and administer the decedent’s small estate.
Example: In California, state laws give the following individuals preference when the court appoints an estate representative: (1) Surviving spouse/registered domestic partner; (2) children; (3) great grandchildren; (4) parents; (5: brothers and sisters; (6) issue of sisters and brothers (nieces and nephews); (7) grandparents; (8) issue of grandparents (aunts, uncles); (9); children of a predeceased spouse or domestic partners; (k) other issue of a predeceased spouse or domestic partner.
If the decedent established a living trust it is possible there are no probate assets.
A. A surviving spouse or family friend may settle the estate without involving the probate court if the estate does not include any probate assets.
A. An attorney with particular knowledge of state laws and processes can help (and in some cases must help) the estate representative administer an estate. If a normal probate process is required, some states require a lawyer to complete and file the probate forms with the court.
The executor or trustee has the legal right to hire the attorney of their choice.
Before hiring an attorney, be clear on the fees he or she is going to charge the estate for their services. The laws in the state where the probate case is filed determine whether the attorney can charge the estate reasonable fees, which is usually some type of hourly fee, or whether the attorney can charge fees based upon a certain percentage of the gross value of the probate estate. California statutes allow attorneys to charge fees based upon a certain percentage of the probate estate. If the decedent’s personal residence is a probate estate with a fair market value of $2 million, the statute allows lawyers to charge a fee of $33,000 for settling the estate, unless the executor makes a written agreement calling for less.
Q. If an executor doesn’t want to hire a lawyer, is there any other way to get help?
A. There are various self help resources to help an executor settle the estate.
• Web sites. Some states and local probate courts include information about probate forms and probate laws on their web site.
• Probate Courts. Probate court clerks will generally answer basic questions about court procedure, but they staunchly refrain saying anything that could possibly be construed as “legal advice.” Some courts, however, have lawyers on staff who examine documents filed in probate proceedings (sometimes called “Court Examiners”); they may identify deficiencies and/or errors in the papers and explain how to correct them.
• State Statutes.
• Legal Document Assistants. In California and Arizona, legal document assistants can help an executor or family. By law, a legal document assistant can’t offer legal advice. They can however help complete forms and file the forms with the courts.
FACT: Estate representative facts
If the estate representative is paid for serving as an estate representative, these fees are income and must be reported on their 1040 tax return.
In most states, the estate representative will be required to post a bond to guarantee their fiduciary responsibilities will be carried out unless the will or living trust waived the requirements for a bond. The cost of the bond is an expense of the estate administration, and thus will be paid for from estate assets, rather than from the personal funds of the administrator.