ADMINISTRATION OF A LIVING TRUST
AFTER THE DEATH OF AN INDIVIDUAL TRUSTMAKER
The estate settlement and trust administration attorney associated with The Florida Probate Lawyer, PLLC assists successor trustees for living trusts in fulfilling their responsibilities and fiduciary duties as successor trustee in the administration or settlement of revocable living trusts (sometimes called a "trust probate") after the death of the trustmaker (the trustmaker is referred to with the legal terms "grantor", "trustor", or "settlor"). If you need the assistance of an experienced Florida trust administration lawyer or trust estate settlement attorney, with the administration a revocable living trust after the death of the trustmaker, please contact The Florida Probate Lawyer, PLLC to learn how we can help you, toll free (888) 492-2468 or by email to Info@TheFloridaProbateLawyer.com.
The administration and distribution of assets held in a revocable living trust following the death of an individual Trustmaker is considerably easier, less time consuming and much less expensive than probate. However, there are still many things that need to be done by the successor Trustee before the assets of the trust can or should be distributed to the beneficiaries.
Although the needs of each situation will vary considerably depending on the size of the trust estate and the nature or location of the trust assets, as well as the details or manner in which the distribution of the trust assets was structured by the decedent, and how completely the revocable living trust was actually funded (meaning all the assets were properly placed into the trust through the proper retitling of the assets), the following will provide a list of recommendations and general guidelines for the successor Trustee of a revocable living trust:
1. Don’t make any rash decisions or act hastily regarding the distribution of any estate assets! If trust assets are distributed without proper observance of possible tax liabilities, potential creditors’ claims or precise fulfillment of the trust instructions, the Trustee could be held personally liable for the consequences.
2. Attend to the memorial and funeral arrangements of the deceased Trustmaker if this has not already been done or is not being handled by someone else.
3. Contact the deceased Trustmaker’s estate planning attorney (or if unknown or unavailable, another estates and trusts attorney who specializes in estate settlement and trust administration) and schedule an appointment to establish a professional relationship for guidance and direction to properly handle the successor Trustee’s responsibilities. This does not have to be done immediately, but is recommended within 20 to 30 days after the Trustmaker’s death.
4. The time preceding the estates and trusts attorney visit should be used to help settle the emotions that follow the death of a family member or close friend and to begin the accumulation of documents and information (described hereafter) that will be needed by the estate settlement lawyer or trust administration attorney.
Accumulation of documents and information:
Since the death tax or federal estate tax return (Form 706), if required, is due nine months after the Trustmaker’s death, the accumulation of documents, appraisals, etc. described hereafter should be completed as soon as possible either before or shortly after the first meeting with the estate’s attorney.
A general description of what will have to be compiled and the steps or procedures for the successor Trustee to do are summarized as follows:
· Obtain and organize all billings or other papers regarding the deceased Trustmaker’s final medical treatments.
· Request several certified copies of the death certificate as such will be needed for various steps in the estate administration and termination process. Usually, 6 to 10 certified copies will be sufficient.
· If any safe deposit boxes exist (hopefully in the name of the revocable living trust so they will be readily accessible), they should all be checked and all ownership documents, insurance policies and other important papers should be removed for delivery to and review by the estate’s attorney. (This usually cannot be done until the successor Trustee has a certified death certificate and appropriate pages from the trust to present to the bank.)
· Locate the original of the living trust agreement and other documents that make up the Trustmaker’s estate plan. (If not found, the Trustmaker’s estate planning attorney usually has a copy.)
· If the deceased Trustmaker was living alone, the locks should be changed and other steps taken, if necessary, to close and secure the residence. If the residence will be vacant, the insurance carriers should be notified of that fact.
· Automobile insurance and any other pertinent insurance policies should be checked to be certain trust assets are insured against potential loss or liability.
· All life insurance policies should be located or searched out and then compiled for the eventual filing of claims to recover the life insurance proceeds that would now be due to the trust (or other beneficiary if the Trustmaker did not name the trust as the beneficiary).
· A list of all household furniture and furnishings (by major items or categories) should be made, and to be absolutely safe if several beneficiaries are involved, photographs should be taken of the household contents or an unrelated and disinterested witness should be present when the list is made. The witness should then sign the list as to its accuracy and completeness. The list will also be of great help in keeping track of where personal property items are eventually distributed, and to provide a record of compliance with the terms of the trust agreement.
· All other assets of the estate such as automobiles, stocks, bonds, mutual funds, pensions, IRAs and other retirement funds, boats, planes and other vehicles, bank accounts, business or partnership interests, trust deeds or promissory notes payable to the deceased Trustmaker or the living trust, etc., etc. should all be inventoried with a description of each and statement of value when the Trustmaker died. If financial statements from banks or investment companies or similar items are available, they should be compiled as well.
· The names of all institutions or persons holding assets titled to the revocable living trust should be included in the inventory with their address and phone numbers and, of course, the account numbers.
· After the trust asset inventory is completed, it may become appropriate to consolidate whatever bank and brokerage accounts exist depending on the terms and instructions found in the living trust document and to simplify both distribution to heirs or subsequent accounting of the monies as part of the administration process. However, this should not be done prematurely and is best deferred until after the first meeting with the estate’s attorney, and possibly later.
· Whatever funds are received or disbursed to satisfy expenses or possibly as a partial distribution of the estate assets, the transaction must be promptly and accurately written into the check register book or other appropriate accounting record so as to be easily substantiated at a later date if ever challenged. This information is also very important for tax reporting purposes, since if records aren’t kept showing where income came from and what expenses were paid, it’s impossible to determine what income is taxable and what expenses are deductible.
· Although it is not necessary to pay any bills of the trust estate or the deceased Trustmaker immediately (and sometimes it’s better to wait until everything settles before doing so), all bills should be gathered for evaluation as to their legitimacy and priority status, if any, for eventual payment. Sometimes, a trustee can be held personally liable for debts of the trust estate if the estate has funds to pay those debts, but fails to do so, or if the trustee distributes the living trust funds to other persons. Thus, again, it is safest to determine outstanding liabilities and to complete the inventory of trust assets before making distributions to beneficiaries, since it is very awkward for a trustee to go back to beneficiaries and ask that the trust assets and trust property be returned.
· If the living trust will generate income from the date of death until all trust assets are distributed, (which is generally the case), a tax identification number needs to be obtained for the living trust. The trust estate’s attorney will normally attend to that process.
· In other instances, or at least for part of the calendar year in which the Trustmaker died, his or her social security number will continue to be all that is necessary.
· Federal and state income tax returns will probably be required for the deceased Trustmaker to the date of his or her death, which would be due the following April 15th just as normally required for individuals. However, there may also be a need to prepare and file an IRS Form 1041 trust income tax return for all income received by the living trust after the Trustmaker’s death. The estate’s attorney and whatever accountant selected to handle the trust administration will direct the successor Trustee on all the accounting and tax return requirements.
· Some states, including
· Once the above steps are completed and the exact status of the trust estate is determined, the successor Trustee and the trust estate’s attorney will be able to complete the final trust administration and distribution of the trust assets to heirs that may then be appropriate and called for in the living trust document, or simply close the transition process in a way that enables the successor Trustee to carry-on with the balance of the trust document provisions if the structure does not require full termination. Sometime there will be on-going sub-trusts for the life times of named beneficiaries or to certain ages, etc.
· One important point to remember is that the beginning trust accounting and trust inventory established as of the date of death for the deceased Trustmaker must reconcile with the balances taken at the end of the trust administration period after adjustments for trust funds or trust assets received and distributions made during that time. The trust accounting may then show how trust assets on hand are to be distributed to trust beneficiaries based on the plan of trust asset distribution specified in the trust agreement.
· 'width' is a duplicate attribute name. Line 1, position 37.When trust distributions of trust assets are made, a written receipt and release form should be executed by each trust beneficiary to complete the record keeping and to protect the trustee from further responsibility or liability. Trust funds and trust assets should be distributed to the trust beneficiaries only when they have signed the receipt and release form. (Once trust distributions are made, it is much more difficult to obtain signatures, since it is no longer a priority for the trust beneficiaries.) Again, this is a function that will usually be handled or at least directed by the trust estate’s attorney.
This may sound like a complicated and time consuming job. However, it is considerably easier, faster and substantially less expensive than going through the Florida probate process. Also, the successor trustee can access accounts for the trust immediately (once a death certificate is available), which is more convenient than waiting for authorization from the Florida probate court.
Again, however, it is very important not to act without proper professional guidance, because to do so could easily cause the trust estate or trust beneficiaries and heirs to lose out on many protections and/or tax benefits that were intended to occur by use of the revocable living trust format.
Final comments on inventories, accountings and tax issues:
In preparing the inventory of trust assets, it is important to contact each institution holding trust assets to obtain date of death value, owner, beneficiary (if any), and other pertinent information in regard to the trust assets. In this way, specific ownership, and beneficiary designations, and other pertinent information can be determined before trust distributions of trust assets are made.
It is not acceptable to take values of trust assets from statements, because the IRS has specific requirements for ascertaining date of death values for trust assets, including calculating income earned to date of death even if income has not yet been credited to the trust account. Written verification of values from institutions holding the trust assets or a record of the calculations will be very helpful in the event of an IRS audit. A formal trust inventory also prevents errors, and keeps tax records clean.
The preparation of a trust inventory and a comprehensive trust accounting is also an excellent method of verifying that everything is actually titled in the name of the living trust, and if not, to determine how they are titled so that appropriate decisions and actions can be made with regard to taking possession or control of trust assets.
The bottom line is that all the steps touched upon above are not only important from a legal stand point and the protection of the successor Trustee, but also are necessary to fulfill the specific financial distributions, protections and other goals that were intended by the Trustmaker and his or her use of a revocable living trust document.
CONCLUSION:
Use and follow the advice of the Trustmaker’s estate planning attorney to avoid or reduce state and federal death or income taxes and to protect against personal liability for the successor Trustee.
Don’t act hastily or distribute trust assets of the trust estate without consulting with the trust estate’s attorney.
Prepare an inventory and accurately account for all trust assets and trust funds that come into the trust estate.
Obtain receipts and releases for all trust distributions to trust beneficiaries when they are eventually made and follow all instructions of the living trust agreement in order that once the directed trust distributions are completed, remaining administration of the trust if required for other possible trust beneficiaries will be able to continue without difficulty or controversy.
'width' is a duplicate attribute name. Line 1, position 37.TRUSTEE DUTIES AND RESPONSIBILITIES
A. General Overview :
1. All trustees must follow the terms of the trust instrument unless the provision is illegal or impossible to perform, or if circumstances warrant a court-ordered deviation.
2. In order to perform the responsibilities of trust administration, all trustees have not only the powers specifically set forth in the trust instrument, but also those provided in the Florida probate code and the Florida trust code which are automatically granted even though not stated in the trust document itself.
3. If both the specific powers stated in the trust instrument as well as those found in the Florida probate code and Florida trust code are not sufficient to enable the trustee to complete the instructions of the living trust agreement, the trustee can petition the Florida probate court for additional trustee powers.
4. Additionally, there may be an omnibus clause in the trust document or other implied powers by Florida law, which allow the trustee to do anything necessary to carry out the objectives and purposes of the living trust as expressed in the trust document. (Note: Using any powers that go beyond those expressly stated in the trust document or provided by Florida statute can be risky to the trustee and should be exercised very cautiously.)
B. Terms of the Trust :
1. The express terms of the living trust instrument are controlling of the trustee’s actions.
2. Any action taken by the trustee which goes contrary to the express language of the living trust document may expose the trustee to personal liability.
3. If the language of the living trust instrument is ambiguous or unclear, the trustee can refer to verbal or written instructions known to the trustee that are outside of the trust for clarification. However, those extrinsic sources cannot be used to override or take any action that is contradictory to the language of the trust instrument.
4. Rather than taking any action that is contrary to the trust instrument (even if it appears to be inferred by extrinsic written or oral instructions from the trustmaker), the trustee should consider petitioning the Florida probate court for direction and guidance. Failure to do so could make the trustee personally liable to trust beneficiaries, creditors, or third parties who were negatively effected by the trustee’s conduct.
5. If any written direction to the trustee outside the living trust document would have the effect of modifying the language of the trust itself, the trustee would put himself at peril if he followed those instructions unless they meet the formal, legal requirements for trust modification and approval is sought from the Florida probate court, or all trust beneficiaries.
C. Duty of Skill and Care :
1. All trustees have the duties and responsibilities of the trustee position regardless of whether or not they are compensated for their services.
2. In fulfilling his duties, the trustee must do so “with reasonable care, skill, and caution under the circumstances then prevailing that a prudent person acting in a like capacity would use in the conduct of an enterprise of like character and with like aims to accomplish the purpose of the trust as determined from the trust instrument”. This applies to trust investments, trust administration and the distribution of trust assets to trust beneficiaries.
3. If the trustee is considered to be an “expert trustee” with special knowledge, skills and experience dealing with trusts, his duty of care and diligence will be greater.
4. At least once every year (more often if required by the living trust agreement), the trustee is required to give a full trust accounting of the value of all trust assets, trust income received, distributions of trust assets to trust beneficiaries made, trust administration expenses paid, etc., etc. to all trust beneficiaries to whom trust income or or trust principal that year was distributable. Any language in the living trust document contrary to this requirement is void under Florida trust law. However, a trust beneficiary may voluntarily waive the right to receive that information so long as the waiver of accounting is in writing signed by the trust beneficiary.
5. The trustee also must keep trust beneficiaries reasonably informed of trust activity and trust administration.
6. When a living trust that was revocable becomes irrevocable (usually on the death of a trustmaker), the trustee must provide a complete copy of the irrevocable portions of the trust agreement to any trust beneficiary of a deceased trustmaker who requests a copy.
'width' is a duplicate attribute name. Line 1, position 37. 7. The above duty to provide a copy of the trust agreement includes the responsibility to provide a report about the trust assets, trust liabilities and trust disbursements that are relevant to the trust beneficiary’s interest. (This does not apply if the living trust is revocable.)
8. The privileges of attorney/client communications and attorney work product remain protected and do not need to be disclosed.
9. If access to trust records is given to a trust beneficiary or potential trust beneficiary, rather than providing copies thereof, the trustee should be present during that review.
10. Absent contrary instructions in the trust instrument, the trustee has a duty not to delegate to third persons the performance of acts that the trustee can reasonably be required to perform personally. (This does not mean the trustee is prohibited from engaging the services of trust administration attorneys, financial advisors, accountants, clerical assistants, etc.).
'width' is a duplicate attribute name. Line 1, position 37.D. Notification Requirements :
1. Notification to all "qualified" trust beneficiaries of an irrevocable trust or the irrevocable portion of a living trust must be given in the following circumstances:
a. When a previously revocable trust becomes irrevocable in full or in part.
b. When there is a change of trustees of an irrevocable trust.
2. The persons to receive notification are:
a. Each trust beneficiary of the irrevocable trust or irrevocable portion.
b. Each heir of the trustmaker if the event creating the irrevocability is the death of the trustmaker.
c. The attorney general if the trust is a charitable trust subject to the supervision by the attorney general.
d. Identification of said persons is tempered by the ability of the trustee to identify or locate such persons through reasonable diligence.
3. Notification to the trust beneficiary is to be made by mail to the last known address or by personal delivery within 60-days following the occurrence of the event requiring service of the notification, or 60-days following the trustee becoming aware of the existence of the person entitled to notification.
4. The notification must contain the following:
a. The identity of the trustmaker and the date of the trust.
b. The name, mailing address and phone number of each trustee of the trust.
c. The address of the physical location serving as the place of administration of the trust.
d. Any additional information that may be required by the terms of the trust itself.
e. The right of the recipient upon reasonable request to receive a true and complete copy of the terms of the trust as applicable to that person.
f. A warning, set out in a separate paragraph in boldfaced type, that states, “you may not bring an action to contest the trust more than 60-days from the date this notification by the trustee is served upon you or from the day on which a copy of the terms of the trust is mailed or personally delivered to you in response to your request during the 60-day period, whichever is later.” (This warning is not required if notification is served only because of a change of trustee.)
5. Failure of a trustee to provide the required notice will subject the trustee to all damages, including attorney fees and costs caused by the failure to give the notification unless the trustee has made a good faith effort to comply with that responsibility.
E. Duty of Confidentiality:
1. Every trustee has a duty to keep the affairs of the trust administration confidential (this applies to the terms of the trust, the identity and interest of the trust beneficiaries and the nature of the trust assets.)
2. Special rules may apply if the trustee is a corporate fiduciary administering a private trust.
3. In some instances, the duty of confidentiality can be overridden. These include:
a. Litigation and rules of discovery or presentation of evidence that may be applicable.
b. Possibly government regulations such as the filing of income tax returns or property tax issues.
c. When the information that is being disclosed is already of public record.
d. The previously described rights of certain trust beneficiaries or heirs to receive copies or information about the trust administration from the trustee.
F. Conflicts of Interest :
The primary duty of every trustee is to administer the trust solely in the interest of the trust beneficiaries. (This means according to the distribution and asset management that is provided in the trust for the beneficiaries.)
Although a trustee can also be a beneficiary of the same trust, doing so may occasionally create a potential conflict of interest with respect to the rights or management of assets for other trust beneficiaries.
If the trustee has any other financial dealings with the trust such as landlord, creditor, etc., such may also create a potential conflict of interest.
All self-dealings of every nature by the trustee with the trust are prohibited! (This is true even though the transaction causes no actual loss or damage to the trust.)
If the trustee already had an existing relationship business-wise or was a creditor of the trust before becoming trustee, such may continue (though it may create a potential conflict of interest in the administration of trustee duties).
Once the trustee assumes that position, however, no new transactions of any kind that would benefit the trustee personally or for profit are allowed. Thus, the trustee can not even use assets of the trust for personal benefit or enter into new transactions with the trust of any nature that would be beneficial to the trustee.
The trustee may, of course, use the trust assets in the course of carrying out the trustee’s duties and administration of the trust.
This prohibition may also extend to family members or business associates of the trustee.
Sometimes, however, such self-dealing transactions are allowed by language in the trust and if so, may be allowed if the conditions of the trust are fulfilled.
Transactions between the trustee and the trust can also be undertaken if informed consent is contained from all beneficiaries or is approved by the court.
Every trustee is also prohibited from engaging in a business that is in competition with any business of the trust.
This material represents general legal information the administration of a revocable living trust after the death of the settlor. Since the Florida law of trusts is continually changing, some provisions may be out of date. It is always best to consult an experienced Florida probate or trust lawyer or attorney about your legal rights and responsibilities regarding your particular case.
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Macclenny, Glen Saint Mary |
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Starke, Brooker, Hampton |
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Cocoa, Cocoa Beach, Merritt Island, Titusville, Melbourne, Palm Bay, Cape Canaveral, Satellite Beach, Rockledge, Barefoot Bay, Indialantic, Malabar |
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Blountstown |
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Punta Gorda, |
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Cross City,
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Duval County trust attorneys |
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Moorehaven |
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Port St. Joe, Wewahitchka |
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Jasper, White Springs |
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Wauchula |
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Clewiston, LaBelle |
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Brooksville, Weeki Wachi |
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Tampa, Plant City, Temple Terrace, Apollo Beach, Brandon, Lutz, Ruskin, Sun City Center, Riverview, Dover, Thonotosassa, Ybor City |
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Bonifay |
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Marianna |
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Mayo |
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Fort Myers, Bonita Springs, Cape Coral, Fort Myers Beach, Sanibel, Boca Grande, Estero, San Carlos Park, Lehigh Acres, Waterway Estates |
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Bronson, Cedar Key, Chiefland, Williston, Yankeetown |
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Stuart, Sewall’s Point, Hobe Sound, Jensen Beach, Jupiter Island, Ocean Breeze Park, Palm City |
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Miami, Coral Gables, Coconut Grove, South Miami, Kendall, Homestead, North Miami, North Miami Beach, Miami Beach, Hialeah, Miami Shores, Miami Lakes, Aventura, Bal Harbour, Bay Harbor Islands, Hialeah Gardens, Key Biscayne, Pinecrest, Surfside, Cutler Bay, Doral, Golden Beach, Indian Village, Islandia, Medley, Miami Gardens, North Bay Village, Sunny Isles Beach, Sweetwater, Virginia Gardens, Florida City, Goulds, Biscayne Park |
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Okeechobee |
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Palm Beach, West Palm Beach, North Palm Beach, Lake Worth, Boca Raton, Delray Beach, Boynton Beach, Greenacres, Highland Beach, Hypoluxo, Juno Beach, Jupiter, Lake Park, Lantana, Ocean Ridge, Palm Beach Gardens, Royal Palm Beach, Wellington, Pahokee, Tequesta, Riviera Beach, Loxahatchee, Manalapan, Ocean Ridge, Glen Ridge |
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New Port Richey, Bayonet Point, Gulf Harbors, Dade City, Holiday, Hudson, Land O’Lakes, Odessa, St. Leo, Zephyrhills |
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St. Petersburg, Clearwater, Dunedin, Gulfport, Largo, Oldsmar, Pinellas Park, Safety Harbor, Tarpon Springs, Treasure Island, Belleair, Madeira Beach, North Redington Beach, Seminole, Indian Rocks Beach |
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Palatka, Interlachen |
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Gulf Breeze, |
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St. Lucie |
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Wildwood, Bushnell, The Villages |
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Live Oak |
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Perry, Steinhatchee |
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Daytona Beach, Ormond Beach, New Smyrna Beach, Deland, Deltona, Edgewater, Holly Hill, Ponce Inlet, Port Orange |
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DeFuniak Springs, |
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Chipley |