Does an attorney have an obligation to insur that a living Will and Trust is execueted honestly and faithfully?

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Does an attorney have an obligation to insur that a living Will and Trust is execueted honestly and faithfully?

Asked on January 28, 2014 under Estate Planning, Utah

Answers:

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

An Executor is the person named in a Will and appointed by the court to be in charge of probating the Will and settling the estate under the court’s supervision. In order to be appointed by the court, a petition for probate must be filed with the court, and if the nominated Executor agrees to serve and no one objects, the court will issue “letters testamentary” which authorize the Executor to gather up the estate assets, open an estate bank account, sell assets, pay creditors, and ultimately, upon court authorization, distribute the estate assets (after debts, taxes and administration expenses are paid) to the heirs in accordance with the terms of the Will.

A Trustee is the person in charge of the assets held in a trust, and is normally named as trustee in the trust. If the trust is a living trust, probate will be avoided for the assets held in the trust, and court supervision is usually not necessary. In such a case, the Trustee may perform many of the same tasks that the Executor would otherwise handle, except without the burden of probate. If the trust is created in the deceased person’s Will, it is a testamentary trust and it will be subject to the supervision of the Probate Court. In either case, the Trustee is responsible for managing and distributing the trust assets to or for the benefit of the beneficiaries of the trust in accordance with the terms of the trust.

SELECTING A TRUSTEE OR AN EXECUTOR

The choice of a trustee or executor is a decision that should not be made lightly. Serving as a trustee or executor is not just an "honorary" role -- it requires someone who is:

  • honest and trustworthy
  • conscientious
  • able to do the work
  • available
  • willing to serve
  • organized
  • savvy about investments and taxes
  • neutral & unbiased
  • a good listener and communicator
  • attentive to details
  • able to handle & resolve conflicts
  • careful about keeping records

Most often, people name a spouse or adult child as executor/trustee, but this is not always the best choice. Consider the above qualities – if your family member doesn’t measure up, pick someone else.

You don’t have to name a family member. It may be better to name a friend, your accountant, a professional fiduciary, or a bank or trust company.

WHAT DOES AN EXECUTOR OR TRUSTEE HAVE TO DO AS Well As The Attorney?

The responsibilities of Executors and Trustees are very similar (see The Primary Responsibilities of the Executor and Duties of a Successor Trustee . . .*), but there are some important differences.

  • Executors must deal with probate; trustees of revocable living trusts normally do not.
  • Once probate is concluded, the executor’s job is done; a trustee may have ongoing trust administration responsibilities for a period of years if the trust assets are not distributed right away.
  • Executors must account to the court for the assets of the estate; trustees may or may not have to account to the court (but they must account to the beneficiaries).

* Note: The checklist of Duties of a Successor Trustee is very generalized, and should not be construed to address everything the successor trustee may have to do. The “Duties” checklists are somewhat different for surviving spouses who are the trustee for simple spousal trusts or A-B trusts.

Both Executors and Trustees can have a lot of work to do in administering the estate, and it is not a task to be taken lightly. If someone does the job badly, it can create major problems for the heirs. As such the attorney for the estate must be vigilent re the work done by the trustee or executor.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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