Suits for Aid and Direction
One of the benefits of having a last will and testament is that, upon death, the interested parties in the estate’s administration are identified. In addition to detailing how a person’s assets and property are to be divided and dispersed, a will’s provisions will specify who is to carry out the tasks necessary to fulfill the person’s wishes.
After a person’s death, their assets will be gathered, business affairs settled, debts paid, necessary tax returns filed, and assets distributed as the person directed. These activities are generally carried out by an executor or trustee acting in a fiduciary capacity. The will or trust document will likely impart important directions to the fiduciary, such as which assets should be used to pay taxes and expenses. The documents will also list the fiduciary’s powers in some detail. After understanding their powers and role, the fiduciary still bears the task of addressing certain routine issues and taking specific steps to distribute the person’s assets in accordance with their wishes.
There are numerous decisions that the personal representative makes during the administration of an estate. It is crucial that the fiduciary understands the will or other documents and has a clear and firm grasp of its directives. Because the estate administration process can be complex and implicate numerous laws and guidelines, it is very helpful for the fiduciary to retain an attorney who specializes in estate or trust administration to assist them in performing their duties properly, especially since trust and estate administration can have, among other things, tax and investment implications.
Sometimes, however, complex or ambiguous subjects cannot be resolved through professional legal advice, and it becomes necessary to seek the court’s direction on a proper interpretation of the document. In such circumstances, a fiduciary or personal representative may seek what is called “aid and direction” from the court.
Typical issues requiring a suit for aid and direction include:
Conflicting or ambiguous provisions in the will or documents;
Confusion as to whether a particular asset is part of the decedent’s estate; and
A determination on whether certain distributes are part of the will.
A personal representative could be personally liable for an erroneous disbursement, so seeking aid and direction from the court can be extremely helpful to ensure the assets are placed in the proper hands. If the personal representative follows the court’s order, he or she is protected from personal liability.
A Changing of Times
In the past century or so, the rules and responsibilities of executors have not changed that much. However, as Charlottesville aid and direction attorneys might explain to you, they have become more complex. In the past, the executor would usually find all the necessary documents in a safe, cabinet, or other place. Today, many of these documents are stored on digital hard drivers or on a cloud platform. It is not unheard of for an exectuor to not know about all of these locations or be unable to access them. If this should happen, it could result in a number of problems including a dispute or suit.
How Digital Media Can Affect an Estate
At this time, most states do not have clear laws regarding an executors ability to gain access to the digital property of a decesaed person. For example, many popular email providers have terms that make it extremely difficult for family members, regardless of whether they have exectuor authroity, to gain access to their accounts. Some, providers will even delete the account if they should find out that the person has died.
Mistakes that an Executor Could Make
If you have been named as an exectutor, and the person is still alive, as respected Charlottesville aid and direction attorneys, we would advise you to get all of the account details and their locations now. Likewise, if you are planning an estate, be sure your executor has all the right information. Should these steps not be taken, the mistakes can be disaterous. As Charlottesville aid and direction attorneys, we know of the following mistakes that have resulted in suits.
Paying Creditors Too Soon or Not in The Right Order – It should not be assumed that an executor must pay off debts as they arrive. Rather there are priority debts and those that are not a priorty. For example, federal and state taxes are a priority and should be paid first. If a creditor pays off debts before priority debts, they can be liable. For instance, if an executor pays off credit card debts and there is not enough money to pay the estate taxes or federal income taxes, they may have to pay these debts out of their own pocket.
Before you pay off any debts related to an estate, you should consult with Charlottesville aid and direction attorneys. Keep in mind that during this process, and depending on the size of the estate, you might expect several months for all debts to be paid off. It is certainly possible for the heirs to pressure you, as the executor, and it is advisable not to succomb to them.
Losing Control of the Estate’s Assets – As the executor it is your duty to keep all assets safe prior to their distribtion. After the death, visitors can come and go, and during this time, things may disappear. All assets should be stored properly and these areas must be monitored. You may choose to hire a security firm or install cameras to watch the estate during the settlement process.
Real Estate Problems – In the event of real estate being involved, you might find that one heir is trying to sell the property quickly while another would like to keep it. In fact, one of them may be living on the premises. As the executor of the estate, you will need to determine whether there is a selling agreement. If so, it will be up to you to list and sell the property, as well as, determine the sales commission. If any improvements need to be made before the sale, you will need to discuss this with the heirs and draft an agreement. Depending on the circumstances, you may need to get permission from the court.
Investing the Estate – Sometimes an executor will choose to invest the decedents assets in the stock market. As a Chartlottesville aid and direction attorney might explain to you, this is not a good idea. If there are any losses, you will almost certainly be responsible for them. It is your job to protect the assets, and not sell them.
Talk with MartinWren, P.C., Today
If you have been appointed to serve as a fiduciary, whether as the executor of a will, administrator of an estate, or trustee, contact the estate administration attorneys at MartinWren, P.C. We can help you best understand your responsibilities and advise you on the proper way to fulfill your fiduciary duties.
The Virginia estate administration attorneys at MartinWren, P.C. can represent you in a suit for aid and direction as you seek answers from the court. In most instances, reasonable attorney’s fees incurred for seeking the aid and direction of the court can be paid from the estate as a cost of its administration.
Contact the Virginia Aid and Direction attorneys at MartinWren, P.C. at (434) 817-3100 today and ask for either John B. Simpson or G. Raye Jones. We will examine the documents and use our broad base of legal expertise to help you properly fulfill your role as executor, administrator, trustee, or other fiduciary.