Our attorneys and staff provide assistance with all aspects of the estate administration process. We also provide Trustees with legal guidance and assist them with trust administration. In appropriate circumstances, when a family member or friend is not available to serve as Executor or Trustee, we serve in these capacities.
Representing Executors, Administrators and Trustees
We advise Executors (if a person died with a Will), Administrators (if a person died without a Will or if the person serving was not named in a Will) and Trustees regarding their responsibilities, including gathering, safeguarding, managing and selling assets, recordkeeping, communicating with beneficiaries and heirs, making tax elections, filing income and estate tax returns, paying debts and making distributions to beneficiaries.
We perform a range of administrative tasks on behalf of these fiduciaries. We provide notice to beneficiaries and heirs-at-law, arrange appraisals, coordinate with real estate agents, financial advisors and accountants, communicate with financial institutions to transfer assets, and prepare inventories, accountings and federal estate tax returns.
Serving as Executor or Trustee
We encourage clients to designate a trusted and responsible family member or friend to serve as Executor or Trustee because often a family member or friend can do the job well and will not charge a fee, or will charge a fee that is lower than the fee a professional fiduciary would charge. However, if a suitable family member or friend is not available to serve on a client’s behalf, our attorneys are available to serve as Executor or Trustee.
We take a hands-on approach and establish open communication with estate and trust beneficiaries to ensure that their concerns are addressed and that we are serving them as well as possible consistent with our duties as Executor and Trustee. We work with our staff and network of real estate appraisers and agents, auctioneers, accountants, and investment professionals to administer Estates and Trusts efficiently.
Planning and Initiating the Estate Administration Process
In our initial meeting with a decedent’s family or other person managing the decedent’s affairs, we review the decedent’s estate planning documents, asset information and any debts and formulate a plan to administer the Estate and distribute assets to beneficiaries in a timely manner.
After reviewing estate planning documents, assets and debts, we advise whether it is necessary to file a Will for probate (proving a document is a valid Will before the court) and qualify as Executor (or Administrator if there is no Will). When probate is necessary, we arrange and prepare clients for probate appointments. We also accompany clients to probate appointments and represent them at the appointment upon their request.
Inventories, Accountings and Distribution of Estate and Trust Assets
Estate and trust accountings reflect income received, sales of assets, expenses paid and the identity of assets remaining at the end of the accounting year. We prepare estate inventories (a listing of estate assets) and accountings for filing with the Commissioner of Accounts, an officer of the Circuit Court, and we also prepare trust accountings for Trustees to provide to beneficiaries. Assets transferred into a Trust during one’s lifetime, or assets distributed to a Trust by beneficiary designation, are generally not subject to the probate process and are held, administered and distributed independently of the court system.
Before fiduciaries make distributions to beneficiaries it is essential that all debts and expenses have been paid or that adequate reserve funds are set aside. We provide guidance for distributing assets and we can help protect fiduciaries from personal liability from the IRS and from unknown estate or trust creditors.
Estate Tax Returns
The 2017 federal estate tax exemption is $5,490,000.00, with future annual increases tied to inflation, but could be changed by future legislation. If the value of the Estate exceeds the federal estate tax exemption, counting all estate assets plus the decedent’s lifetime taxable gifts, if any, the decedent’s Estate is required to file a federal estate tax return within nine months of the decedent’s death. Virginia currently has no estate or inheritance tax.
We prepare and file federal estate tax returns on behalf of Estates and have experience dealing with IRS audits with regard to estate tax returns. A federal estate tax return can be filed (even though not required and no estate tax is due) within nine months of the death of the first to die of a married couple for the purpose of assigning the unused federal estate tax exemption of the first spouse to die to the surviving spouse. This can substantially increase the estate tax exemption of the surviving spouse. We also prepare federal gift tax returns for clients who make lifetime taxable gifts. Virginia currently has no gift tax.
Some Estates and Trusts require special legal attention because a provision in a Will or Trust may be unclear, the manner of execution of the Will may have been irregular, the condition of the Will may have been altered, or of one of many other issues that may arise. We also assist trust beneficiaries with out-of-court Trust modifications, such as converting a Trust so distributions to beneficiaries are determined based on the market value of Trust assets (a so-called Total Return Trust) instead of net trust income, which can be especially helpful when interest rates are low.
Additionally, we represent beneficiaries in court proceedings to replace a Trustee or to modify Trust provisions if a court proceeding is necessary. Our attorneys represent beneficiaries and Trustees in court when legal and non-contested factual issues are at stake, and if there are contested factual issues we collaborate with attorneys who focus on litigation.
We represent estate and trust beneficiaries, working to ensure that a beneficiary’s rightsto information and property are protected, and that the Executor or Trustee is acting in accordance with his or her fiduciary duties to the beneficiaries. We also advise beneficiaries on the impact of disclaiming an inheritance for estate tax planning purposes, and provide the procedural steps and prepare documents required to make a disclaimer.
Serving as Trust Advisor (also known as Trust Protector)
Trusts can continue in effect for many years, and to address unforeseen circumstances, or to mediate a dispute among Trustees or between Trustees and beneficiaries, or to fill a vacancy if no named successor Trustee is available to serve, a Trust Advisor can be named in a Trust. The Trust Advisor can be given authority to resolve matters and thus avoid trust litigation.
A Trust Advisor is not a Trustee and only provides assistance at the request of a Trustee or beneficiary in the event of gridlock between Trustees, a vacancy in the office of Trustee, or a dispute arising between a Trustee and a beneficiary. If a Trust Advisor is going to be named in a Trust, it is often advisable to name a third party unrelated to the Trustee or beneficiaries, and our attorneys are available to serve as Trust Advisor when needed.