A “probate administration” may be required either during a person’s lifetime, or after the person has died, or both. In certain circumstances, if a person becomes incompetent during lifetime and owns property, it may be necessary to initiate a conservatorship proceeding through the Probate Division of the local Circuit Court in order to preserve and manage the person’s property. In such cases, the Court will appoint a “Conservator” to take charge of and administer the property of the incompetent person, all under the continuing supervision of the Court. Alternatively, when a person dies owning property in his/her name, it may be necessary to initiate a decedent’s estate administration through the Probate Division of the local Circuit Court, whereby a “Personal Representative” is appointed by the Court to administer the estate. Among the most common public misconceptions is that having a last will and testament avoids the need for a probate administration; in truth, a will is required to be probated in order to have legal effect, and, therefore, often necessitates a probate administration.
In any probate administration, whether a conservatorship estate or a decedent’s estate, it is imperative that the person appointed by the Court (Conservator or Personal Representative) fully understand his/her duties and obligations and comply with all applicable law and orders of the Court. Without proper legal counsel, the estate’s representative can quickly find himself/herself in an unenviable circumstance. Failing to properly perform his/her duties can, and often does, result in the representative being removed by the Court and assessed personal liability for amounts found to be due the estate.
The Estate Planning Group at CECB regularly represents and assists Conservators and Personal Representatives in all aspects of probate administrations, including, but not limited to, the following:
- Initiating the probate administration and obtaining the appointment of an estate representative;
- Assisting the estate representative in obtaining all necessary court approvals concerning the management and/or sale of estate property;
- Preparing and filing all required accountings with the Court; and
- Effecting termination of the probate administration.
Among the most commonly cited reasons for creating a revocable trust is the desire to avoid probate. With proper legal assistance, a revocable trust generally does eliminate the need for a formal probate administration, and allows the person creating the trust to personally select a successor Trustee to manage the trust upon death or incompetency. Nevertheless, a successor Trustee is legally responsible for fully and properly administering the trust, whether the trust’s creator is living (but perhaps incompetent) or deceased.
Like in the case of a probate estate representative, it is crucial that a successor Trustee have a complete understanding of his/her duties and obligations, both under applicable law and the trust instrument. Failing to properly perform all such duties and obligations can result in the successor Trustee being held personally liable to the trust and its beneficiaries.
The Estate Planning Group at CECB commonly represents successor Trustees in the proper and effective administration of trusts, including, but not limited to, assistance with the following:
- Assisting the successor Trustee in formally accepting trusteeship;
- Publishing a notice to creditors;
- Assisting in the collection, management and disposition of trust assets;
- Communicating with and responding to beneficiaries of the trust;
- Preparing trust accountings;
- Assisting in the formal termination of the trust; and
- Preparing and filing all necessary tax returns.