I get calls all the time from people who tell me about a relative who recently passed away.  The callers will usually tell me that they found me on the internet, or they were referred by a financial planner, or other person, who said I could help them.  These callers often tell me about how they need someone to help them carry out the instructions in a will, or find a will, or generally tell them what to do now that their relative has passed away.  I listen to what each caller has to say, and then gently let them down by telling them the services they seek are not part of what I offer in my law practice. My next sentence is usually to let them know that I am happy to refer them to someone who can help them, but it will just not be me.

Some of the callers are quite surprised to hear that I do not offer the service of representing someone in carrying out an estate plan.  I have been told that “I wrote the estate plan, so it is my duty and responsibility to help them carry it out.”  I have been told that they don’t understand why an attorney who writes estate plans doesn’t carry them out.  And I have been told by most people that they are glad I can refer them to someone who can help.

In these cases, I can see how the callers might be confused as to why I do not handle estate administration cases, as most people don’t really distinguish between estate planning and estate administration.  There are many law firms and many attorneys who handle both estate planning and estate administration, I just don’t happen to be one of them.  I draw the distinction between estate planning and estate administration for clients, and I let them know what I handle and what I do not handle.  I also know many attorneys who do the things I do not handle, as I want each individual with whom I interact to get what they need, even if I don’t offer the service they need.

I handle estate planning, which is the process of setting things up to know where assets should go after someone passes away, and what happens between now and when someone passes away.  I do not handle estate administration, trust administration, or probate on behalf of clients, or carrying out the instructions put into an estate plan. Certainly I need to understand what happens in estate administration to set up an estate plan, but my knowledge of estate administration is not as detailed as someone who handles estate administration as part of their practice.

 

What Is Involved in Estate Administration?

Administering an estate takes into account all of the different things that need to happen once someone has passed away.  If someone has a will, then the will needs to be taken to the probate court.  Probate is the legal process by which the assets of a deceased individual are to be distributed to the named beneficiaries or heirs in a will.  The will alone is not enough to start a probate case.  There are necessary forms to apply for probate and necessary actions to be taken as part of a probate case.  The person responsible for carrying out the instruction of a will, known as the personal representative, needs to take the proper steps.  The personal representative needs to apply for probate, get legal permission from the court to act on the deceased person’s behalf, usually in the form of letters testamentary or letters of administration – the legal paperwork to show who is legally authorized to act on behalf of the deceased individual – and the representative can claim the assets of the deceased individual.  The personal representative also needs to pay off a deceased person’s debts out of assets the deceased person owned at the time of passing, and if debts exceed the assets, get the outstanding debts discharged by the probate court.  If assets exceed debt, then the personal representative needs to distribute the remaining assets to the proper beneficiaries named in the will.  The personal representative checks in with the probate court along the way and complies with necessary reporting requirements of the probate court and the timeline and deadlines the probate court has established.  An attorney who handles probate administration will be familiar with the deadlines, the proper policies and procedures to follow with the court, and can represent a personal representative in carrying out the personal representative’s duties and responsibilities.

Similarly, a trustee of a trust is responsible for carrying out the instructions of a trust after the person who created the trust has passed away.  Since the person who created the trust is often a trustee while they are alive, this is often the responsibility of a successor trustee.  A trust is not bound by the same timelines of the probate process or the probate court, but still needs to get assets where they are supposed to go.  Debts still need to be paid, and assets distributed to the properly named beneficiaries of a trust.  An attorney who handles trust administration can provide representative, guidance, and counsel on what a trustee needs to do after someone has passed away.

Both of these are part of administering an estate, which I see as carrying out the instructions contained in a will or trust when the person who created the will or trust passes away.  The administration of an estate is the process of carrying out what the estate plan dictates.

 

What is Involved in Estate Planning?

Estate planning is the process of setting everything up in the proper way, so that the instructions in the estate plan can be carried out properly once someone has passed away.  A will gives away assets to the named beneficiaries or heirs, and a trust gives away assets to the named beneficiaries of a trust.  A trust only controls property and assets owned by the trust, whereas a will dictates what happens to assets owned by an individual, so long as those assets do not have a designated beneficiary.  Assets like life insurance, IRAs, 401(k)s, and many investment accounts have beneficiary designations, and the beneficiary designation will control what happens to the asset that has a named beneficiary.  One of the most important parts of an estate plan is to look at where assets are supposed to go,and ensure the assets are properly set up to flow to the correct person, and that different beneficiaries of a will, trust, or other account do not conflict with each other.  All of the named beneficiaries in any of the assets need to work in harmony to get the assets where the deceased individual wanted them to go.

Estate planning involves getting the proper documentation set up to achieve the goals and objectives of the individual who creates the estate plan.  If different parts of an estate plan show different distributions, severe conflict can arise during the administration of the estate and can cause conflict.  A good estate plan sets up an asset distribution that works the way the individual intended.  The estate plan even includes things like a financial power of attorney, and a medical powers of attorney, which allow someone to make decisions on behalf of an incapacitated person.  An estate plan should include those types of documents and plans to ensure the intent of the individual who created the estate plan is carried out, even if the individual is incapacitated.

 

Estate Planning Can Help Estate Administration Be Easier

I handle the estate planning piece of things, setting up estate plans as described above, just not the estate administration side of things.  I view estate planning as doing legal work on the front side and estate administration as doing legal work on the backside of the process.  I prefer to work on the front side and avoid the back side of the work.  I also find that in most cases, if we do the work properly on the front side, the back side is much less work, or even simplified for the people carrying out the plan.  I enjoy helping people on the front side, and getting their plans in place to avoid conflict and fights on the back side – the administration of an estate.  If you would like to talk to me about getting your plan properly set up, please click the button below to schedule an appointment.