CONCLUSION

The law of estate and trust administration is extremely complex and the liability is too great to learn on the job. You cannot rely on the probate court staff to walk you through the probate process. Probate courts do not render legal advice and are not staffed to educate the general public on probate procedure.

Fulfilling your fiduciary responsibilities requires that you hire professionals. The Uniform Probate Code states: “The fundamental duties of a trustee include the use of the skill and prudence which an ordinary capable and careful person will use in the conduct of his own affairs.” You are not held to the standard of what you happen to know, but what you should know to completely and competently discharge your duties.

Ignorance is no excuse when it comes to fiduciary responsibility. If you don’t have accounting, investment, or legal experience you will need professional help. To fully discharge your duties and avoid liability, you need to engage the services of an accountant (Chapter Eight), an investment advisor (Chapter Five) and an attorney. How to locate and choose professionals in these areas is discussed in the respective Chapters as well as the Directory or Resources.

FINDING A LAWYER

It is important to retain a lawyer who specializes in estate administration and estate planning to assist you in administering your late spouse’s estate or trust. Since trust and estate administration involves complicated tax issues, you should choose a lawyer with experience and advanced training in taxation.

A lawyer with a post-law degree in taxation (“LL.M”) is preferred. The trust department of your bank or brokerage house often has names of attorneys they have worked with and can give you a referral. You can also use the Directory of Resources section of this book to obtain names of attorneys in your area, along with their qualifications.

You may also have friends, acquaintances or co-workers who have used a lawyer, in circumstances similar to your own, who can either recommend or steer you away from an attorney.

What you learned by administering your late spouse’s estate should be helpful as you plan your own estate. Chapter Nine will help you avoid the pitfalls discussed in this Chapter.

Comparison Chart of Formal Probate, Informal Probate, and Trust Administration