Fiduciary Appointments is an area of our practice in which we can help you with becoming a fiduciary for an estate or Trust. We also help with dealing with existing fiduciaries that have become problematic. Parker Law, LLC is a skilled probate lawyer in Columbia, SC who serves as a fiduciary, such as Special Administrator or Personal Representative.
What is a Personal Representative?
When an individual passes, all of their business affairs must be settled, debts paid, and their assets must be gathered and distributed as directed by the decedent or deceased individual. Generally, this is conducted on behalf of the deceased by a fiduciary known as personal representative or trustee, depending on how the decedent’s property was held.
Oftentimes, a Last Will and Testament is used to nominate and appoint this personal representative. In these cases, it is straightforward for the local probate court to give the person legal authority to act on behalf of the deceased. However, in cases when a person passes and there is no Will, the appointment may be more complex and, at times results in a contested matter, and the court must make a determination as to who can or should handle probate matters and be appointed the decedent’s personal representative.
Personal Representative vs Trustee
Trusts are a fiduciary relationship in which a settlor gives a trustee the right to hold the titles to assets and properties for benefit of a beneficiary. In cases where a trustee becomes incapacitated or deceased, the appointment of a successor trustee becomes necessary. Similarl to a Will, a Trust agreement names (or should name) the person that will replace the initial trustee. While this process is usually guided by either state law or the Trust agreement, there are times where issues arise and a successor trustee is not clearly defined. This usually dictates the need for legal proceedings to appoint a successor trustee.
Often, a successor trustee has no experience in dealing with these matters. In that case, it is strongly recommended that they seek professional counsel regarding the investment of assets or any disputes that may arise. Not only can a skilled advisor help with disputes, they may also give advice on how to handle trust administration.
Durable Power of Attorney
While a non-durable Power of Attorney becomes ineffective if you are incapacitated, a Durable Power of Attorney remails in effect even if the principal becomes incapacitated and lasts until their passing. The named agent will have the ability to legally take care of your financial matters such as: paying bills, sell property, obtain insurance, manage bank accounts, and retirement plan on your behalf. It is important for an appointed agent to obtain legal advice about their responsibilities and duties and to know what they are and are not permitted to do under Durable Power of Attorney. It is also important for Durable Powers of Attorney to be updated regularly, as financial institutions may or may not honor an older Power of Attorney.
At times, whether purposeful or not, problems can arise with an appointed fiduciary. In cases where a fiduciary fails to follow the written instructions of a Will or Trust, misappropriates or mismanages funds, or fails or is unwilling to provide information to those that are entitled to it, court action may be required to compel them to act as they should. Most times, these problems can be resolved with legal representation before it gets to that point.
The administration of an estate, Trust, or power of attorney can be a daunting task even for experienced fiduciaries. Whether you need to be appointed Personal Representative of a decedent’s estate, need direction as a Successor Trustee, seek guidance for a Durable Power of Attorney, or need assistance with a problematic fiduciary, it is important that you seek legal advice before you undertake any of these tasks.
Parker Law, LLC can assist you with assist you with managing your loved one’s probate estate or represent you in a contested probate matter. If you are in need of help with an estate or Trust administration, or your duties as an appointed fiduciary, please don’t wait. Contact Parker Law, LLC today.
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We don’t just provide a boilerplate, cookie cutter solution. When you schedule a consult, we will have a detailed and thorough conversation to make sure that you get the help that you need. When you sign with us, we make sure that you understand what’s going on every step of the way. Call us today to schedule a consultation!