A loved one’s passing is felt by their entire surviving family. But when it comes to carrying out the decedent’s final wishes, not everyone has an equal say. In fact, in many cases, only one person—the executor, or personal representative, of the estate—plays a role in administering a will. This role includes gathering the deceased’s accounts and property, paying debts, managing the money and property, then distributing the money and property to the chosen individuals or charities named in the will. The same is true of trust administration. The trustee, and typically the trustee alone, is in charge of managing, investing, and distributing the trust’s accounts and property according to the instructions in the trust document. If you are the executor of your loved one’s estate or the trustee of their trust, there are some things you need to know.
You are responsible for ensuring that the trust and estate administration goes according to plan as laid out in your loved one’s will or trust, possibly with the assistance of a lawyer. Though it is not legally required, you may choose to involve other family members in your meetings with the attorney, especially in the beginning phases of the administration. Bringing others to meetings can provide greater transparency and avoid contention. However, the attorney–client relationship extends solely to you. The attorney has a legal duty to, and takes direction from, only you.
Key Parties in the Will and Trust
Wills and trusts are estate planning tools that allow people to transfer their accounts and property to others when they pass away. It is possible to have both a will and a trust that are part of a larger estate plan. Although wills and trusts are different kinds of documents, they use similar language to identify the key parties involved in asset distribution. Understanding the key parties will help you to better understand everyone’s role in the administration.
● The testator is the person who creates a last will and testament to be carried out upon their death.
● The trustmaker (also called a grantor, settlor, or trustor) is the person who creates a trust.
● The executor (or personal representative) is the person appointed to fulfill the wishes of the testator in accordance with their will. Usually, the testator chooses the executor when they create a will. But if a person dies without a will, the state where they lived may choose the executor.
● The trustee is the person who administers the trust on behalf of the trustor.
● A beneficiary is a person (or business entity, such as a charity) who receives accounts or property from a will or trust.
● An heir is someone entitled to receive a decedent’s property under a state’s default laws when the decedent dies without a will.
Another important term to understand in the context of will and trust administration is “fiduciary.” A fiduciary is somebody granted legal authority to act in the interests of another. Executors and trustees are fiduciaries. They have been given legal authority by the testator, trustmaker, or the court to carry out the distribution of the testator’s or trustor’s estate accounts and property. A fiduciary’s legal duty, known as a fiduciary duty, extends beyond the estate. Fiduciaries must also act in the best interests of beneficiaries.
Whom Does the Attorney Represent?
When you, as the executor or trustee, hire an attorney to help you with the estate or trust administration, you are the client. This means that the attorney-client relationship extends solely to you; the attorney has a legal duty to, and takes direction from, only you.
If you are also a beneficiary under the will or trust that you are administering, you must keep in mind that although the attorney represents you, it is only in your capacity as the executor or trustee. The attorney is there to assist you with the administration, not to handle any issues or advise you on your rights as a beneficiary under the will or trust.
In addition, if you choose to allow a family member to attend a meeting with you and the attorney, the attorney should make it clear to your family member that the attorney represents only you as the executor and no one else.
Keeping Beneficiaries in the Loop
Wills and trusts can be complex and difficult to understand. Most executors and trustees choose to hire an attorney to help them carry out the terms of these legal documents.
Because executors and trustees owe a fiduciary duty to beneficiaries to communicate with them and keep them reasonably informed about the progress of the administration, it may make sense to invite beneficiaries to your meetings with the attorney. This can be especially helpful if the estate or trust administration is very complex. Allowing the attorney to explain first hand and answer any questions regarding the administration may be easier than remembering everything the attorney said and relaying the information to the beneficiaries.
Attorney meetings are a good setting for open communication, but the attorney–client relationship limits what the attorney can do and say. The attorney will follow instructions from, and is allowed to give legal advice to, only the client. During the meeting, the attorney can answer basic questions from beneficiaries about what to expect during the administration. The attorney can neither give legal advice to, nor act on behalf of, beneficiaries.
Administration can become contentious when a beneficiary disputes a will or trust or claims that their beneficiary rights are not being protected. In that case, the beneficiary may choose to hire their own attorney. From that point forward, the beneficiary’s attorney can offer advice, communicate directly with the fiduciary’s attorney, and handle other tasks reserved for the attorney–client relationship.
Setting Up Your First Meeting
If you are currently serving as an executor or trustee and need assistance navigating the administration, please give us a call. We are happy to sit down with you and discuss the process and help guide you through the next steps.