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2014 Estate Planning Seminar

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2014 Estate Planning Seminar WHO IS THE FIDUCIARY?1 © 2014 Anthony L. Barney, Ltd. All Rights Reserved. A. PERSONAL REPRESENTATIVES, TRUSTEES, AND TRUST OFFICERS: POWERS AND DUTIES 1. Duties of a Personal Representative A personal representative is appointed by the court to care for the estate of the deceased. An individual can name a personal representative through a testamentary instrument; however, the personal representative has no powers prior to being appointed by the court.2 The statutory fiduciary duties of a personal representative include: (a) the duty to take possession of the estate and collect debts;3 (b) the duty to use reasonable diligence;4 (c) the duty to close the estate within eighteen (18) months;5 and (d) the duty to submit periodic accountings to the court.6 Additionally, a personal representative owes a general duty to the beneficiaries of the estate and the court may order the personal representative to perform other specific duties.7 The personal representative must be diligent in administering the estate. In some cases this may include pursuing an action against one or more of the beneficiaries. It is important that the personal representative understand what is expected in their role. The personal representative should also be aware of potential issues that will affect the distribution of the estate. For example, transfers are void if made as the product of duress or undue influence.8 There are a few situations where the transfer itself is sufficient to presume that it was the product of duress or undue influence. These situations include transfers to a caregiver or a person who paid for the transfer instrument.9 Absent a presumption, undue influence is shown when it appears that the influence destroyed the will of the testator.10 As part of the duty to use reasonable diligence the personal representative should be aware of the presumptions of undue influence and should, were applicable, be aware of the circumstances that give rise to such a claim. The main statutory duties of administration include, but are not limited to the following: a. Marshal Assets and Provide Inventory The personal representative should collect the assets of the estate, including real property, cash, and personal property. When applicable, liquid assets should be placed in a blocked account and the personal representative should take other necessary precautions to prevent any 1 The author wishes to give special thanks to his law clerks, Zachary D. Holyoak and Mary L. Martell, for their assistance in his preparation of this outline. 2 NRS 138.010. 3 NRS 143.030. 4 NRS 143.035. 5 NRS 143.037. 6 NRS 150.080-150.115. 7 NRS 143.050. 8 NRS 155.097. 9 NRS 155.097(2). 10 Caraveo v. Perez (In re Estate of Bethurem),313 P.3d 237 (Nev.2013) 1 loss or destruction of estate assets.11 As part of the duty to take possession of the estate the personal representative may have to pursue legal action against anyone who is in possession of estate assets.12 As part of the duty to marshal assets the personal representative must file an inventory with the court within sixty days after appointment.13 The inventory must include the entire estate of the decedent14 and must contain a list of all real and personal property of the decedent.15 The inventory must also contain a statement of all debts owed to the decedent or other interests of the decedent.16 This should include the names of each debtor, the original sum owed, and the sum, which the appraiser believes may be collectible on each debt.17 Additionally, the inventory must identify debts owed by the decedent.18 The inventory should also identify any portion of the estate that is community property.19 Finally, the inventory must provide an account of all money belonging to the decedent that has come into the possession of the personal representative.20 b. Provide Accounting The personal representative is accountable for all the assets of the estate that come into his possession.21 The personal representative is also required to file an accounting of the estate within six months of being appointed.22 The personal representative is then required to provide an annual accounting as well as a final accounting when closing the estate.23 This provides the beneficiaries with information about assets and the handling of those assets. It also provides the court with a chance to review the actions of the personal representative to encourage the proper management of the estate. This is an important duty of the personal representative in that it requires the personal representative to perform their requisite duties with diligence, and subsequently report to the court. c. Timely Administration and Closure Unless otherwise ordered by the court, the personal representative has the duty to close the estate within eighteen (18) months.24 The personal representative may petition the court for the estate to remain open if there is a will contest or other litigation by or against the estate, or if the amount of taxes owed have not yet been determined.25 The court may also order that a portion of the estate remain open in order to cover any potential liabilities and that the rest be distributed.26 11 NRS 142.020. 12 NRS 143.060; NRS 143.070. 13 NRS 144.010. 14 NRS 144.040.1 15 NRS 144.040.2(a). 16 NRS 144.040.2(b). 17 Id. 18 NRS 144.040.2(c). 19 NRS 144.040.3(a). 20 NRS 144.040.3(b). 21 NRS 150.070.1. 22 NRS 150.080. 23 NRS 150.105. 24 NRS 143.037.1. 25 NRS 143.037.2. 26 NRS 143.037.3. 2 d. Additional Non-Probate Administrative Duties Finally, there may be reasons other than the administration of an estate that would require the appointment of a personal representative.27 The court may require the personal representative to perform additional non-probate administrative duties depending on the circumstances. For example, if the decedent owned and ran a business the court may order that the personal representative take over the operation of the business to protect and preserve that asset. There are special circumstances where the court will appoint a personal representative for other reasons. These circumstances may include a situation when a decedent is either involved in a legal proceeding or such a proceeding is pending. In order for the legal action to continue or be commenced, a personal representative is appointed to act on behalf of the deceased. This scenario is illustrated in Brass v. State.28 In Brass, the appellant was convicted of multiple felonies. He died during the pendency of his appeal. The decedent’s attorney filed a motion for abatement. The Supreme Court of Nevada found that the issue was not properly before the court because no one had been substituted as a real party in interest for the deceased. Unless a personal representative is appointed, a legal action involving a deceased party generally cannot proceed. 2. Powers of the Personal Representative The statutory powers of the personal representative include: (a) the power to sue or be sued on behalf of the deceased;29 (b) the power to make certain investments;30 (c) the power to make loans;31 (d) the power to hold stock in the name of the nominee;32 and (e) the power to direct termination of certain electronic accounts.33 (f) Additionally, the personal representative has the power to maintain or commence a cause of action against any person for conversion or trespass.34 a. Power Sue or Defend Suit The personal representative is granted the power to sue on behalf of the deceased or to defend against a suit against the deceased. This power allows a personal representative to seek the best interests of the beneficiaries of the estate. It allows a personal representative to defend the decedent’s estate against claims that could deplete it; and also gives the personal representative the ability to initiate or proceed with legal actions that benefit the decedent’s 27 NRS 143.050 (The court may authorize the personal representative to continue the operation of the decedent’s business to such an extent and subject to such restrictions as may seem to the court to be for the best interest of the estate and any interested persons.) See also NRS 143.060 (Personal representative is the real party in interest for the estate of the decedent. Actions for the recovery of any property, real or personal, or for the possession thereof, or to quiet title thereto, or to determine any adverse claim thereon, and all actions founded upon contracts, may be maintained by and against a personal representative in all cases in which the actions might have been maintained by or against the decedent); See also NRS § 143.070 (A personal representative may commence or maintain an action against any person who has wasted, destroyed, taken, carried away or converted the goods of the decedent. A personal representative may also commence or maintain an action for trespass committed on the real property of the decedent while living). 28 Brass v. State, 306 P.3d 393 (Nev. 2013). 29 NRS § 143.060. 30 NRS § 143.175. 31 NRS § 143.180. 32 NRS § 143.187. 33 NRS § 143.188. 34 NRS § 143.070; See also NRS §143.080(The personal representative can also be sued as the real party in interest for conversion). 3 estate. A personal representative can be appointed for the sole purpose of litigating a cause of action. For example, in Nevada Paving v.
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