Estate planning involves different types of documents, legal terms, and even roles to assign. As the testator (the person creating the estate planning documents), naming your trustee, executor, and power of attorney will be an important part of your planning, and understanding the position each one holds in the Virginia probate process will be imperative. Essentially, all of these positions have one overarching goal — to work in the best interest of the testator. Yet, it is also important to note that everyone is busy today with their own lives, and adding another role to someone’s day can cause them to feel overwhelmed.
Distinct challenges exist for trustees, executors, and power of attorneys, so you need to find the people you can count on to fulfill these roles in the ways you wish. Whether you are in the process of creating your estate planning documents or find yourself in the role of trustee, executor, or power of attorney, seek the legal advice and guidance of a Virginia estate administration attorney so that you can take the necessary steps when fulfilling your obligations.
A trustee or successor trustee will administer the trust by following all the terms outlined in the trust document. They will also be tasked with notifying, updating, and distributing those remaining trust assets to the designated beneficiaries. As such, it is important to note that a trustee who carries out fiduciary duties does not need court authorization to proceed but will be responsible for taking steps that meet all legal and financial guidelines.
To help the trustee fulfill their role, the Code of Virginia provides what powers and responsibilities reside with them. Essentially, the trustee will have powers set forth in the trust terms and as designated by statutory law. These terms may include limitations, but generally, the trustee will have power over investments, management, and the distribution of property included under the trust, and will also need to file all required tax returns.
For help with interpreting and understanding the powers and responsibilities of a trustee, consult with an experienced Virginia Beach trust administration attorney.
All trusts in Virginia are not the same. Some of the most frequently created types include the following.
The estate personal representative, referred to as the executor in Virginia, is in charge of administering the decedent’s estate. This administration can the management and distribution of real, intangible and personal property owned by the testator, and requires supervision as part of the Virginia probate process. Essentially, the ultimate role of the executor is to make distributions to all the beneficiaries listed in a will and meet the legal duty of carrying out the terms of the decedent’s will.
Along with the title of estate executor come various expected duties, called “fiduciary duties”. Some of these fiduciary duties include:
It is important to note that an executor cannot decide who gets the assets of the estate once a person is deceased. The will specifically names the selected beneficiaries and which assets go to each beneficiary. There is nothing for the executor to do but abide by those directions. They cannot take matters into their own hands and determine how much each beneficiary or any other person or organization can receive.
Being named executor in a will is a big responsibility and can be a challenge. As such, you may be considering declining the role. In Virginia, you are allowed to do so but must provide a letter to the court to that effect. In certain jurisdictions, this letter may need to be notarized before submitting.
What will happen next depends on what is or is not in the will. That is to say, did the decedent name a co-executor in the will or an alternate executor should you be unable to fulfill the role for any reason? If neither of these are present, the probate court will appoint someone else to serve as executor.
As a power of attorney (POA), your role will differ in that you will be acting on behalf of another person (the “principal”) who may be incapacitated or chooses to have you make important decisions for them. A durable power of attorney gives an individual the legal authority to make decisions on behalf of the principal. Most often these decisions concern healthcare matters and financial decisions. As long as the principal has capacity, he or she retains the ability to make decisions on their own behalf or revoke or modify the POA and its decision-making power at any time.
Along with being designated as a power of attorney over another, this legal document will also indicate what type of decisions you will be responsible for making, such as legal, financial, or healthcare-related choices. Examples of the POA responsibilities and tasks you may need to undertake include:
The type of power of attorney and the duties involved can be challenging so you will want to be sure you understand how to fulfill this role to the best of your abilities. For help, seek the guidance of an experienced Virginia estate planning attorney.
Whether you name a family member or other person to serve as the power of attorney, trustee, and executor of your estate, it is essential to understand key differences and how they work together. Certain dynamics and legalities are involved with each role.
When it comes to estate planning, your challenges will depend on what assets you have and may accumulate in the future. You or a loved one will want all the proper estate planning documents created and the power of attorney, executor, and trustee designations decided ahead of time. The estate and trust administration attorneys with the Midgett Preti Olansen law firm in Virginia can help you prepare your estate plan and assist in its various administration requirements.
To find out more or to schedule a consultation with one of our attorneys, call 757-687-8888 today or submit our online contact form at your convenience. With an office in Virginia Beach, we proudly serve clients within northeast North Carolina and the Hampton Roads area, including Norfolk, Newport News, Chesapeake, Hampton, Suffolk, and Eastern Shore.