by Jeffrey W. Jones, Esq.
When someone dies, there is a legal process established by law in every state, the purpose of which is to “wind up” the financial and legal affairs of the deceased. This process is generally called “probate” and involves collecting the assets of the deceased, paying debts and taxes and distributing the property of the deceased to those who are legally entitled to receive it. Probate usually is required whether or not there is a will, but can sometimes be avoided or reduced in scope if the deceased had planned in advance, making extensive use of trusts, joint property and beneficiary designations.
The manager or administrator of the estate is called the “Executor” or “Personal Representative” and is either named in a will or appointed according to state law (based on kinship to the deceased) in cases where there is no will. In Maine this person is called the Personal Representative, whether or not there is a will.
The Personal Representative is said to have a “fiduciary responsibility” to the beneficiaries of the estate, which refers to the very highest level of duty or responsibility one person can legally owe to another. By accepting appointment as Personal Representative, a person is voluntarily taking on this high level of responsibility and submitting to the jurisdiction of the Probate Court. It is not a responsibility to be undertaken lightly. In fact, fiduciaries are held to different, higher legal standards than individuals acting only in their own interest, as a matter of law.
A Personal Representative is entitled to hire a lawyer, at the expense of the estate, to help him or her properly carry out the many responsibilities of the office. Although the lawyer hired by the Personal Representative is often referred to as “the lawyer for the estate” the lawyer actually represents only the Personal Representative, in his or her fiduciary capacity. As lawyers specializing in trust, estate and probate matters, we are ready to assist in all of these matters, and we take seriously our responsibility to protect our clients from fiduciary liability and legal entanglements of any kind while helping them carry out their fiduciary duties.
As attorneys, it will be our duty to the Personal Representative to fulfil the responsibilities and exercise the powers provided by by law in a way that compiles with legal requirements, satisfies the beneficiaries, and protects our client from liability. Another important goal is to accomplish this as quickly as possible, without wasting time or money. We pride ourselves on completing probate and estate tax matters in the shortest time possible under the circumstances of each case.
Through years of experience, we have found that the best way to accomplish this is to be the central clearing house and point of information for all things related to the estate, keeping a record of every aspect of estate administration. All decisions are made by the Personal Representative; all actions are taken at the direction of the Personal Representative and all checks are signed by the Personal Representative, but we provide guidance at every step of the way (and prepare an ongoing account in “real time” of all financial activity in the estate).
There are law firms that will agree to only perform tasks and render legal services that are specifically requested by the Personal Representative. We do not think that is either the most efficient way, or the safest way, for the Personal Representative to administer the estate (unless it is a bank, trust company, lawyer or CPA). There is just too much to know, too many rules to follow and too many traps for the unwary. It has been our experience that failure to take advantage of professional advice causes delays in estate administration, leads to unhappy beneficiaries, and usually results in higher fees and expenses for the Estate. In a worst case scenario, it can lead to personal liability for failure to properly administer the estate.
If you have been named as Personal Representative (or would like to be) and chose to allow our firm to provide legal representation to you in your fiduciary capacity, all of us will dedicate our best professional efforts to making your experience a positive one.
The information presented on this website is general in nature and not intended to be legal advice. No attorney-client relationship will exist with Jones, Kuriloff & Sargent, LLC unless we agree in writing after a personal consultation. Please contact us for a consultation on your particular situation.