The existence of a decedent is not a legal requirement for the grant of probate in a living trust. However, an estate does become a legal requirement if the decedent has left instructions for designing his or her estate. Such instructions could be how the decedent’s property should be dispersed upon his or her death. For example, suppose the decedent intended to provide specific medical care for his or her spouse. The executor receives notice from the court that the patient has passed away and that the estate has been settled. Once this has been received, the executor can distribute the remaining assets according to the decedent’s instructions had specified.
A few situations merit consideration under the circumstances described above. If a testator has expressed a wish for his estate to be administered by someone other than a lawyer, the court appoints such an agent. Similarly, if a testator has given instructions that the executor must follow a specific procedure, the court can appoint someone under its supervision. In cases like these, the decedent’s attorney doesn’t have to administer the Deceased Estates.
Another circumstance that may merit applying the standard rule requiring the presence of an estate executor is where the testator has left instructions regarding the distribution of the decedent estate. In most situations, the instructions must be recorded, and a personal representative appointed to administer the estate. If the instructions do not specify a person to serve as the executor, two lawyers skilled in estate law are often appointed to represent the beneficiaries. It gives them the ability to coordinate and settle the decedent estates without appointing an estate executor. It enables them to pursue the beneficiaries’ right to inherit their inheritance as they would under standard probate procedure.
One final way to apply the standard probate ruling requiring an appointed executor to administer the Deceased Estates is uncertainty about the precise order or terms of the decedent’s will. A typical example is where the will contains multiple versions of the instructions to distribute the estate among the beneficiaries. Different courts have taken various approaches to interpreting wills, and there is no universal governing rule on the subject. Some courts have held that if there is any ambiguity at any stage in administering the decedent’s estate, an appointed attorney should review it and make the appropriate interpretations. However, the majority of courts have held that the probate court can review the document itself and resolve the questions of legal intent, validity, scope, and intent and reach conclusions concerning any conflicts in interests between the beneficiaries.
Even if the probate court ultimately decides to appoint an estate executor, the process does not stop there. Once an appointed attorney has been confirmed in the position, the estate is legally vacant. The individual responsible for filling the trustee’s position must begin planning to distribute the decedent’s assets. Although there are no federal limits on the types of assets a trustee can invest or transfer, most states limit how those assets are transferred after a person dies. Generally speaking, the trustee must establish a discretionary trust containing trustees and arrange for their distribution according to the beneficiaries’ wishes.
Another common issue surrounding the management of decedent estates involves transferring marital assets and other debts owed by the decedent. Since most states treat an estate as an asset, property distributed to beneficiaries does not necessarily exempt those debts from the probate process. Thus, many will contain language that expressly authorizes a trustee not to include the decedent’s marital debts in the distribution. Conversely, some state probate laws allow for the partial distribution of marital assets (including property owned jointly by the decedent and his or her spouse). Besides, most states require that any outstanding debt of the decedent is included in the estate plan.
A final issue that often arises concerning the handling of deceased estates is that of trust administration. Often, when a person dies, his or her representative is appointed. However, not all appointees are interdependent. Often, the decedent’s legal representative (or any one of several types of administrators) will act in the decedent’s best interests only.
It presents an ethical dilemma for anyone managing a decedent’s estate. Suppose the beneficiary believes that the decedent did not want his or her affairs managed in the way it was. In that case, it could be challenging to convince a judge that the decedent’s will was indeed created in the last instance and beneficial to his or her descendants.
As you can see, creating any particular set of rules governing the management of deceased estates can be highly technical. The traditional law providing for the design of testament and the procedure for contesting any invalidating trusts does not cover some of the complicated situations that occur after a person passes away. As such, it is essential for anyone considering the management of a decedent’s estate to engage the services of an experienced attorney. The attorney can explain to the client precisely how the customary laws will apply to the situation and work with the client to craft the most beneficial plan possible under the circumstances.