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ESTATE PLANNING RESOURCES
GUIDELINES FOR INDIVIDUAL EXECUTORS AND TRUSTEES

INTRODUCTION
National LawForms is committed to developing strong partnerships with industry leaders within the legal community, legal associations & legal professionals to deliver quality legal software products. In this section we attempt to provide a comprehensive database of helpful estate planning articles and other resources which compliment our Estate Planning, Trust & Wills software package. View answers to the most common questions about the estate planning process, probate and administration of estates, transfer taxes and tax planning for your assets, and disability planning.
Terms of Use


GUIDELINE FOR INDIVIDUAL EXECUTORS AND TRUSTEES

Introduction/Common Terms
Understanding the Will
Is a Probate Necessary?
Managing Estate Assets
Handling Debts and Expenses
Funding the Bequests
Trust Administration
Closing the Estate
Frequently Asked Questions (FAQ's)

   
 

TERMS OF USE:
Resources in this section are provided AS-IS and may not be suitable for the purposes intended. Questions relating to article content or application should be discussed with a qualified professional. No tax, legal, financial, investment or similar advice is provided herein. National LawForms, Inc. makes no representation or warranty as to suitability of use or accuracy of content. Further, National LawForms, Inc. disclaims any other warranties, express or implied, including but not limited to the warranties of merchantability or fitness for the intended purpose or use. By using he information provided on this page, you are accepting these terms.

Much of the information on this page was provided by the Public Information Web Site of the American Bar Association’s section of Real Property, Probate and Trust Laws. Visit the American Bar Association to view their disclaimer.


INTRODUCTION/COMMON TERMS
After an individual's death, his or her assets will be gathered, business affairs settled, debts paid, necessary tax returns filed, and assets distributed as the deceased individual (generally referred to as the "decedent") directed. These activities generally will be conducted on behalf of the decedent by a person acting in a fiduciary capacity, either as executor (in some states called a personal representative) or as trustee, depending upon how the decedent held his or her property.

As a first step, it is helpful to know the meaning of a few common terms:

Fiduciary - An individual or trust company that acts for the benefit of another. Trustees, executors, and personal representatives are all fiduciaries.

Grantor - (Also called "settlor" or "trustor") An individual who conveys property by means of a trust; the person whose wishes are expressed in the trust.
Testator - A person who has made a valid will (a woman is sometimes called a "testatrix").

Beneficiary - A person for whose benefit a will or trust was made; the person who is to receive property, either outright or in trust, now or later.

Trustee - An individual or trust company that holds legal title to property for the benefit of another and acts according to the terms of the trust.

Executor - (Also called "personal representative"; a woman is sometimes called an "executrix") An individual or trust company that settles the estate of a testator according to the terms of the will.

Principal and Income - Respectively, the property or capital of an estate or trust and the returns from the property, such as interest, dividends, rents, etc. In some cases, gain resulting from appreciation in value may also be income.

As a general rule, the administration of an estate or trust after an individual has died requires the fiduciary to address certain routine issues and follow several standard steps to distribute the decedent's assets in accordance with his or her wishes. These guidelines focus on activities that occur in an estate or trust immediately after the individual has died.


UNDERSTANDING THE WILL
It is very important to read and understand the will or trust so that you will know:

who the beneficiaries are;
what they are to receive and when
how many years the trust will be ongoing; and
who, if any, are your co-fiduciaries

Does the will give everything outright, or does it create new trusts that may continue for several years? Does a trust mandate certain distributions ("All income earned each year is to be paid to my wife, Nancy") or does it leave this to the trustee's discretion ("My trustee shall distribute such income as she believes is necessary for the education and support of my son, Alan, until he reaches age 25")? The document often imparts important directions to the fiduciary, such as which assets should be used to pay taxes and expenses; and the document will usually list the fiduciary's powers in some detail.

Most fiduciaries retain an attorney who specializes in the area of trusts and estates to assist them in performing their duties properly. An attorney's advice is very helpful in ensuring that you understand what the will or trust and applicable state law provides.


IS A PROBATE NECESSARY?
Probate is the formal legal process that gives recognition to a will and appoints the executor or personal representative who will administer the estate and distribute assets to the intended beneficiaries. The laws of each state vary, so it is a good idea to consult an attorney to determine whether a probate proceeding is necessary, whether the fiduciary must be bonded (a requirement that is often waived in the will) and what reports must be prepared. Most probate proceedings are neither expensive nor prolonged.


MANAGING ESTATE ASSETS
It is the fiduciary's responsibility to take control of all assets comprising an estate or trust. Especially when a fiduciary assumes office at the grantor's or testator's death, it is crucial to secure and value all assets as soon as possible. Some assets, such as brokerage accounts, may be accessed immediately; others, such as insurance, may have to be applied for by filing a claim. The usual practice is to engage a professional appraiser to value the decedent's tangible property, such as household furniture, automobiles, jewelry, artwork, and collectibles. Depending on the nature and value of the property, this may be a routine activity, but you may need the services of a specialist appraiser if, for example, the decedent had rare or unusual items or was a serious collector. Real estate, whether it is a home or commercial property, and any business interests must also be valued. Besides providing a valuation for assets that may be reported on a court-required inventory or on the state or federal estate tax return, the appraisal can help the fiduciary to gauge whether the decedent's insurance coverage on the assets is sufficient. Appropriate insurance should be maintained throughout the fiduciary's tenure. The fiduciary also must value financial assets, including bank and securities accounts.


HANDLING DEBTS AND EXPENSES
It is the fiduciary's duty to determine when bills unpaid at death should be paid, and then pay them or notify creditors of temporary delay. In some cases, such as property or casualty insurance bills or real estate taxes, the estate may be harmed if the bills are not paid promptly. Most states require a written notice to any known or reasonably ascertainable creditors. While most bills will present no problem, it is wise to consult an attorney in unusual circumstances, as the fiduciary can be held personally liable for improperly spending estate or trust assets.

The fiduciary is responsible for a number of tax returns. First are the personal returns of the decedent: the final income tax return for the year of the decedent's death; a gift or generation-skipping tax return for the current year, if needed; and prior years' returns that may be on extension all may need to be filed. In addition, if the value of the estate (whether under a will or trust) before deductions exceeds the amount sheltered by the "applicable exclusion amount," which is $1,000,000 in 2003 and due to increase to $1,500,000 for 2004 and 2005.

Since the estate or trust is also a taxpayer in its own right, a new tax identification number must be obtained and a fiduciary income tax return must be filed for the estate or trust as well. It is important to note for planning that the estate or trust and the beneficiaries may not be in the same tax brackets. Thus, timing of certain distributions can save money for all concerned. Some tax accountants and CPA's specialize in preparing such fiduciary income tax returns and can be very helpful. They are familiar with the filing deadlines and will be able to determine whether the estate or trust must pay estimated taxes quarterly.

Most expenses that a fiduciary incurs in the administration of the estate or trust are properly payable from the decedent's assets. These include funeral expenses, appraisal fees, attorney's and accountant's fees, insurance premiums, etc. Careful records should be kept and receipts should always be obtained.


FUNDING THE BEQUESTS
Wills and trusts often provide for specific gifts of cash ("I give my niece $50,000 if she survives me") or property ("My grandfather clock to my granddaughter Nina") before the balance, or residue, is distributed. The residue may be distributed outright or in further trust, such as a trust for a surviving spouse or for minor children. Be sure that all debts, taxes, and expenses are paid or provided for before distributing any property to beneficiaries. Although it is usual to obtain a receipt and refunding agreement from the beneficiary that states that he or she agrees to refund any excess distribution made in error by the fiduciary, as a practical matter it is often difficult to retrieve such funds. In some states, you will need court approval before any distributions may be made. Where distributions are made to ongoing trusts or according to a formula described in the will or trust, it is best to consult an attorney to be sure the funding is completed properly. Tax consequences of a distribution sometimes can be surprising, so careful planning is important.


TRUST ADMINISTRATION
Trusts are designed to distinguish between income and principal, as many of them, especially older trusts, provide for income to be distributed to one person at one time and principal to either that same person at a different time or to another person entirely. For example, many trusts for a surviving spouse provide that all income must be paid to that spouse, but only pay the spouse principal in limited circumstances, such as a medical emergency. At the spouse's death, the remaining principal may be paid to the decedent's children, to charity, or to other beneficiaries. Income payments and principal distributions can be made by check, or at the trustee's discretion by distributing securities as well as cash.

Unless a fiduciary has experience in this area, it is recommended that he or she seek professional advice regarding the investment of trust assets. In addition to good investment results, the fiduciary should invest within the applicable Prudent Investor Rule that governs the trust or estate. A skilled investment advisor can help the fiduciary decide how to invest, what assets to sell to provide cash for expenses, taxes, or outright distributions, and how to minimize income and capital gains taxes.
During the period of administration, the fiduciary must provide an annual income tax statement (called a Schedule K-1) to each beneficiary who is taxable on any income earned by the trust. The fiduciary can be held personally liable for interest and penalties if the income tax return is not filed and the tax paid by the due date, generally April 15.


CLOSING THE ESTATE
Estates close when the executor has paid all debts, expenses, and taxes; received tax clearances from the IRS and the state; and all assets on hand have been distributed. Trusts terminate when a date or event described in the document occurs, such as the death of a beneficiary or the date the beneficiary attains a stated age. Some states require a petition to be filed in court before the assets are distributed and an estate or trust can be closed. When such a formal proceeding is not required, it is nevertheless good practice to require all beneficiaries to sign a document, prepared by an attorney, in which they approve of your actions as fiduciary and acknowledge receipt of assets due them. This protects the fiduciary from later claims by a beneficiary. A final income tax return must be filed and a reserve kept back for any tax that may be due.


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