Probate and Trust administration involves the handling of assets and decisions for the benefit of other people. Executors and administrators handle the probate estate of deceased persons (with a Will or without a Will). Trustees handles the administration of trusts that were established by other persons. Guardians handle the guardianship estates of minors or disabled adults. Each form of estate administration involves a fiduciary duty, the highest form of duty imposed by the law. A fiduciary is a person who has taken on the responsibility to handle assets and make decisions for the benefit of others. It is serious responsibility, and we take very seriously our representation of fiduciaries.
When we represent executors, administrators and trustees, our job is to educate our clients on what is involved and to guide them through the process and decisions that must be made. When we represent estate fiduciaries, we represent them in their roles as fiduciaries and inform them of the fiduciary duties and all they entail. It is a weighty responsibility and fraught with potential liabilities if those duties are not observed. The fiduciary duty is owed to the estate and to the beneficiaries of the estate, who have a right to assert claims against the fiduciary if the duty is violated.
We also represent individuals who may have interests in or claims against estates. If a loved one has passed on, and you are named as the executor of the Will or trustee of the Trust, or you need help in any way in regard to the administration of the estate or understanding and protecting your interest, please Contact Us. We can help.
Probate is the process by which the estate of a deceased person (known as a decedent) is administrated. It is a court proceeding and requires the hiring of an attorney to represent the executor or the administrator of the Estate. An Executor is the person named in a Will to handle the probate administration. An Administrator is the person who is responsible for the administration of estate when the decendant died without a Will.
A trust is, in essence, a contract that a person makes with successors in interest to that person's estate (beneficiaries). When assets are transferred into (titled in) a trust, those assets are subject to all of the instructions contained in the trust. A person who creates a trust while living (a living trust) may be both trustee and beneficiary. As long as the person is alive, the trust is just another way of holding title to assets. The person who creates a trust is called a Grantor or Settlor or Trustor. When the Grantor dies, or becomes incapacitated and unable to manage the trust, the trust document identifies a successor trustee (or trustee in order of succession) who becomes authorized to handle the trust and carry out the trust instructions for the benefit of the beneficiaries that are also identified in the trust. A trustee may or may not be a beneficiary of the trust.
Guardianship is the handling of the estate of another person during that person's life. Whenever a person is unable to manage his/her own affairs or to make legally binding decisions, whether because of age or disability, a guardianship creates that authority. Guardianships are necessary for minors under the care of people who are not the natural parents of the minors and for disabled adults who are unable to manage their own affairs, either due to physical or mental incapacity. Parents do not need to be guardians of their own children. Parental rights confer all the authority parents need.
The probate process and trust administration are dictated by detailed statutory law and whatever instructions are contained in a Will (if any) or trust. Fiduciaries of estates, including guardians, must preserve, protect and maintain the assets until they are finally distributed out of the estate. Fiduciaries have an obligation also to invest the assets and make a return on investment, if they are going to be held for any length of time. Trustees must keep the estate/trust assets completely separate from the trustee's own assets. The fiduciary has a duty to prepare periodic accountings and to provide the accountings to the beneficiaries of the estate/trust. The fiduciary has a duty to keep the beneficiaries informed.