When creating an estate plan, an individual determines how they want their assets to be distributed after their death. The estate planning documents they execute, and the estate planning practices they observe, set the terms. Estate administration is the other side of the coin; this is how the estate planning directives are carried out. Estate administration is largely, though not exclusively, a probate matter and is typically carried out under the supervision and authority of the Probate Court of the county where the individual was a resident at the time of their death.
For the purposes of estate administration, the individual who has passed away is referred to as the “decedent.” The individual tasked with making sure the decedent’s property is properly distributed according to the relevant laws is the Fiduciary, though that person will have a specific title depending on the circumstances. If the decedent executed a last will and testament prior to their death, the will must be submitted to the Court so as to guide the administration process. If the will nominated an Executor who is willing and able to serve in that role, that person will apply to be appointed as Executor.
The Executor is one kind of Fiduciary of an estate. It is important to remember that the will only nominates an Executor, it does not grant the nominee with the authority to administer the estate. Executors who are appointed by the Court are then responsible for distributing the assets of the decedent according to the will. A will ordinarily designates beneficiaries who are meant to receive all or some portion of the assets of the decedent.
If a decedent has not executed a will prior to their death, but there are still assets that must be dealt with, an individual can apply to be the Administrator of the estate. An Administrator is another kind of Fiduciary of an estate. Similarly, if a decedent’s nominated Executor is unwilling or unable to serve that role, an individual can also apply to be the Administrator. Executors are given broader powers to deal with the decedent’s property once appointed. Administrators can accomplish the same tasks but are often required to seek the Court’s approval before transferring property or making distributions. Without a will, the decedent is considered to have died “intestate.” Intestacy law dictates that the assets of the decedent be distributed to their next of kin, which is the surviving family members of the decedent. There is a complex breakdown of how to identify next of kin if that status is not readily apparent, but initially, the Court will look for a surviving spouse or children of the decedent. The next of kin in an intestate estate are referred to as heirs, as opposed to beneficiaries under a will.
Regardless of the type of Fiduciary that applies to administer an estate, that Fiduciary may be required to be “bonded.” Bond is like insurance for an estate. It exists to protect the estate assets in the event they are lost, damaged, or misappropriated. Many wills contain a provision waiving the bond requirement for their nominated Executors, but that same privilege rarely, if ever, extends to Administrators who were not nominated. Becoming bonded will require a credit check by an insurance company who will then issue the bond, which will require a premium based on the amount of the bond.
The Fiduciary must file numerous documents with the Probate Court. In addition to the initial application, the Fiduciary must also file an initial inventory and a final account reflecting the distribution of the estate assets. Those are just some of the possible filings which would be required in an estate administration proceeding. Special documents will be required in order to transfer a motor vehicle or if a bank requires specific authorization to release the proceeds of the decedent’s checking account. There are many other possible filings required, which depend entirely on the circumstances of each individual estate.
While legal representation is not always required to administer an estate, the volume of required paperwork, deadlines, and responsibilities a Fiduciary must undertake and adhere to can prove to be quite challenging.
If you require assistance beginning an estate administration matter or have already begun the process and think you may need assistance completing it, please contact The VanNoy Firm today.
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