Know Thy Assets
Generally, a person becomes petitioner in summary administration or personal representative of a formal estate administration because they are either nominated in the decedent’s last will and testament or appointed voted by a majority of beneficiaries. In either case, if a nominated personal representative (“PR”) is unaware of the estate assets in an estate, then a formal administration will be necessary and appropriate for that person to be formally appointed. Notably, a summary administration requires the petitioner to know exactly what assets exist. Being appointed as PR will empower the PR to receive information from financial institutions and marshal the deceased’s assets to the estate account. In one case, we represented a PR that wasn’t sure of the majority of the deceased’s assets. There were 3 beneficiaries, none of which were the PR. The PR was able to gather some information from the decedent’s house and began to gather assets. There came a point when the PR believed he had gathered all of the assets and we filed the necessary paperwork to close the estate. When the beneficiaries received the accounting of the estate, they insisted that there were additional assets and suggested where to start looking. Unfortunately, because the PR was unaware of these assets and did not complete a reasonably diligent search, the beneficiaries objected to the closing documents and this caused unnecessary court hearings and delays. However, after being provided additional information on the assets, the PR was able to locate several thousand dollars to add to the estate. It is key to note that an estate cannot be wrapped up until all assets have been transferred to the estate account, expenses and fees paid, and a distribution made to the beneficiaries.
With the limited information that we were provided, we served a subpoena on the financial institutions to gather more information. The PR reached out to the additional institutions that the beneficiaries suggested and by the time that we had reached all of the known institutions, we had gathered a total of several hundreds of thousands of dollars for the estate. After we located more funds, we had to amend all of the previous filings to close out the estate. This took additional time and expense to administer the estate. Another responsibility of the PR is to ensure that the decedent’s final personal tax return is filed and for the three years before their death, if they weren’t already filed. In this instance, the PR had to file 2 years of federal and state tax returns and obtained refunds for each year. Unfortunately, this took several months to receive and further delayed administration because an estate cannot close until all refunds have been received by the estate.
An estate cannot be wrapped up until all assets have been located and transferred (marshaled) to the estate or estate’s account. An accounting and proposed distribution to the beneficiaries cannot be complete until all of the assets are received. If any assets are missed and the estate is closed, then the PR would have to petition the court to reopen the estate, causing additional time and costs, to marshall the missed assets. It is important for the PR to follow all leads regarding possible assets to thoroughly complete his or her job. In this instance we successfully located all of the assets prior to closing the estate. We were able to amend the final filings in time and the beneficiaries received a substantial distribution.
It is important for the PR to perform a reasonably diligent search of assets, locate all assets of the estate and follow all leads to do so and not try to close the probate too early. It is important for the PR to have open communication with the attorney regarding all assets or possibilities of assets. It is better to take a little bit of extra time to be thorough the first time, rather than try to rush and end up costing the estate unnecessary time and costs to reopen it or worse.