Law Offices of Craig Willford
Fiduciaries (Executors, Administrators, Trustees, etc.)
Data as of August 23, 2011
The term "Fiduciary" is a broad one; it encompasses many roles persons might assume wherein they are entrusted by others. For this article, the term will be discussed as it relates to fiduciary roles commonly supervised by the Probate Court (even if, as with some Trusts, they are not currently so supervised).
In a Decedent's Estate, there are several terms that apply, all of them "Fiduciaries":
The first three listed above can all be described with a more generic term: "Personal Representative".
An Executor is a person appointed by the Court to be the personal representative who was named in the Will (that was admitted to Probate) to be the Executor (or is the top listed person in a list of persons willing and able to do the job).
An Administrator is a person appointed by the Court to be the personal representative where there is no Will.
An Administrator With Will Annexed (aka Administrator CTA) is a person appointed by the Court where there is a Will but the Will does not name an Executor (or does not name one who is willing and able to act).
A Special Administrators are in a special class: they are appointed to act temporarily until the general personal representative (one of the first three) is appointed. Special Administrators can be appointed with very limited powers enunciated in the Order that appoints them, normal powers to marshal the assets and protect the estate from loss on a temporary basis, or full powers of a General Personal Representative. They should be tossed into the "Personal Representative" group too.
A Guardian Ad Litem is appointed only when the Court perceives that a beneficiary needs protection. Guardians Ad Litem (or GALs) are commonly appointed from the Court's PVP (Probate Volunteer Panel) list. They stand in the shoes of the minor they represent and are charged with the duty of being their legal voice.
The Personal Representative of Decedent's Estate is the one and only person charged under law with the authority to deal with the property of the decedent. No one else is allowed to rent property, sell property, collect property, inventory property, distribute property or otherwise deal with it. It is into the hands of the personal representative that the Court entrusts the proper handling of the decedent's estate from the beginning of probate to the end.
In a Trust setting, many times the matter is not Court supervised. Nonetheless, the Trustee is a fiduciary. Sometimes that Trustee starts out non-Court supervised but comes under Court supervision, either by his/her own petition or by that of another (usually a beneficiary, but sometimes a creditor). Sometimes when the Court takes jurisdiction and supervision, it will require a bond of the Trustee.
In Guardianship setting, the Court appointed Guardian (either of the estate or of the person) is a fiduciary. Again, the Court will almost always require a bond of a Guardian of the estate, but not of the person.
Where a bond is anticipated to be needed, it is a good idea to find out before the Petition is filed whether or not the proposed fiduciary is bondable for the amount of bond that is anticipated to be ordered by the Court.
In order to do this, a bond application to a bonding company must be filled out, signed and submitted. The bonding company my office has been using for many years will do this service before the Petition is even drafted. The application makes detailed inquiry about the size and character of the estate and also about the financial condition of the proposed fiduciary. It asks for a credit card of the person who would be the fiduciary; do not be alarmed: it is merely a way for the bonding company to make sure they are checking the credit standing of the correct person (after all, two people can share the same name). They will not charge anything to the card.
If the proposed fiduciary is not bondable, better to know that up front than after spending a lot of time and effort and money (in filing fees and publication fees) only to find then that a bond can never issue in the amount required by the Court.
On the assumption that the bonding company approves the person for a bond amount anticipated to be issued by the Court, then the actual bond can be signed by the proposed fiduciary and delivered to the bonding company for their signature and filing with the Court when the time is right.
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