By: Shannon K. Mumaw – Associate Attorney
One of the first questions people ask when they discover they have been appointed as the personal representative under a loved one’s Last Will and Testament or as the trustee under a Trust is – “What do I have to do?”
Serving as a personal representative or trustee can be rather daunting at times, but the important thing to remember is that your loved one chose you to fulfill that role for a reason. Broadly speaking, a Personal Representative and a Trustee are one and the same – a fiduciary. He or she has a general duty to distribute the decedent’s estate in accordance with the terms of the will or trust and
in accordance with applicable law. He or she is entrusted with wrapping up the decedent’s final affairs and carrying out the decedent’s final wishes. So, what does all this really mean? As all attorneys love to say – “it depends.” The specific duties will depend on several factors such as the type of assets in the decedent’s estate, the beneficiaries and the family dynamic amongst those beneficiaries, and the individually tailored terms of the will or trust. Each estate is unique, and no two estates are exactly alike – one could say an estate is like a snowflake in this regard.
For example, serving as personal representative or trustee may include assisting with the funeral arrangements and payment thereof; collaborating with financial advisors to liquidate or retitle assets while assessing any tax implications that may result; selling or retitling real property; sorting through tangible personal property to ensure its proper distribution; and ensuring that all proper tax returns are filed and any applicable taxes are paid. The duties of the personal representative or trustee can vary drastically and will depend on the nature of the assets.
However, there are certain legal requirements that someone serving as a personal representative or trustee must fulfill regardless of the nature of the assets. He or she has a responsibility to notify all qualified beneficiaries that he or she has been appointed as the personal representative and/or trustee and that said beneficiary has certain legal rights. This is done either through the Register of Wills for a will, or directly by the trustee or their attorney for a trust.
A person serving as personal representative and/or trustee may also bear the responsibility of publishing a notice to creditors and facilitating the payment of any valid claims. The fiduciary does not incur any personal liability for the payment of the decedent’s debts, but they do have the responsibility to fairly consider the interests of all creditors and use the decedent’s assets to facilitate the settlement of any creditor’s claims that are brought to their attention in a timely manner.
The person serving as a personal representative and/or trustee may be required to produce a full accounting of all the decedent’s assets and any expenses incurred throughout the entire administration. Additionally, depending on the total value of the decedent’s probate assets, there may be additional requirements to satisfy and report to the Register of Wills.
It is important to recognize that a fiduciary not only has the responsibility of ensuring all administration requirements are fulfilled, but that they must do so with a certain standard of care. A fiduciary must exercise their duties with the care, skill, and due diligence of a reasonably prudent person dealing with his or her own property. They must exercise good faith and loyalty to all beneficiaries, and not engage in self-dealing. Such standard of care also includes the maintenance of full and accurate records throughout the entirety of the administration process.
Serving as a personal representative and/or trustee is not an easy job. As a fiduciary, you are held to a high standard and are expected to take on an extensive number of tasks. Although it is a great honor to be the one selected for such a role, it does not come without great responsibility. As such, if you find yourself inheriting the responsibility of a personal representative and/or trustee, I highly recommend seeking legal representation to assist and guide you through the administration process.
Shannon K. Mumaw is an Associate Attorney with Elville and Associates and the leader of the firm’s busy Estate and Trust Administration Department. Through her guidance, she partners with clients as they address the sometimes complex matters of the administration of loved ones’ estates from start to finish, including helping navigate the probate process, inventory and information reports, accountings, and much more. Shannon may be reached at smumaw@elvilleassociates.com, or by phone at 443-393-7696 x116.