When a person dies, the property he or she holds in their own name is called an Estate.
A Will is a legal document that names the person or persons appointed as estate trustee (formerly known as an executor/executrix) and sets out how you want your assets will be distributed.
The authority for administering the estate comes from the Will and is effective the moment the person dies; however, often probate is required before third parties will recognize that legal authority.
An estate trustee or executor is the only person who has the authority to deal with the deceased’s property including making the funeral arrangements – not their spouse, family or attorney for property.
The term probate refers to the process where the court grants official authority to the estate trustee to deal with the deceased’s property. The court grants a Certificate of Appointment to the estate trustee, which is the document that confirms the estate trustee has this authority.
Probate is obtained by filing certain documents with the court giving notice to the beneficiaries of the application and paying the estate administration tax (formerly called probate fees).
In some cases, probate is not always required as it is the nature of the assets that will determine whether probate is necessary.
The law imposes certain duties and obligations on the estate trustee to ensure you act diligently and honestly and for the benefit of the beneficiaries. Estate trustees are held to a high standard of care and have unlimited personal liability for breaches of their duties, meaning they could be forced to reimburse the beneficiaries using their own money.
If multiple estate trustees are appointed, you all must act unanimously unless the Will provides otherwise.
If an estate is a subject of litigation (for example, if the will is challenged) a court may appoint an estate trustee during litigation to manage the estate during the course of the litigation.
In most circumstances, the estate trustee during litigation would maintain and preserve the assets of the estate, pay the deceased’s estate debts and file the required estate income taxes, but would not have the authority to distribute the estate unless the beneficiaries agree or unless the court orders it.
If you have been appointed as an estate trustee, we recommend getting legal advice to make sure your loved one’s estate is taken care of effectively and efficiently, and to protect yourself from potential liability.
If you have questions about estate administration, contact Sweatman Law. We represent executors and beneficiaries in all types of estate matters. We will work diligently to protect your interests, thoroughly explain your legal options and provide you with knowledgeable advice. To schedule an appointment with one of our lawyers, contact Sweatman Law Firm.