Trustee’s Duties After Settlor’s Death

Whenever a person signs a trust, the question is usually asked, “what happens after I die?” Though we will try to list the duties of the Successor Trustee, within the confines of this article there is one assumption which we must make, and that is, that the decedent died owning no property subject to probate. Stated differently, all of the assets of the decedent must be part of the trust estate (i.e., owned by the trustee), or dealt with by contract (i.e., insurance with a designated beneficiary, IRA’s with death beneficiaries named, bank accounts with POD designations, and so forth).

what happens after I die?

When both Settlors are deceased, or if there was only one Settlor, the next Successor Trustee will assume office. The Successor Trustee will then own everything in the trust, so the first thing to do is prepare a list (an inventory) of the trust assets. It is advisable to videotape the premises of the deceased as soon as possible. The homeowner’s insurance carrier should be notified about the death of the decedent, as well as the automobile insurance carrier – so that there will be no gaps in insurance coverage. The real estate should be secured, and this might require that the door locks be changed.

HouseAssuming the real estate will be sold, the home must be prepared for sale, in the same way that any home would be prepared for sale. The sale cannot be consummated until tax clearances are received from appropriate tax commissions (if required) and the IRS (if applicable). In addition, there will be Memorandums of Trust and Certificates of Incumbency required by the buyer’s title lawyer, to complete the sale of the real estate (as well as a number of other title requirements, which usually aren’t disclosed to the seller until the day before closing). If tax releases are needed, partial releases can be issued by these taxing authorities within three or four weeks. If the household contents are not auctioned or given away, the Salvation Army provides a great service, which is, to pick up the contents of the house (which will then be offered for sale in the Salvation Army Thrift Stores). There is more physical labor involved in winding up an estate than you will anticipate.

A copy of the death certificate can normally be recorded with the County Clerk, so that if duplicate certified copies are required, they can be obtained quickly and sometimes less expensively than through the Bureau of Vital Statistics. Once recorded, the death certificate may be cross referenced in the Certificates of Incumbency, mentioned in the previous paragraph.

Vested beneficiaries ought to be given a copy of the trust, and perhaps given a copy of the will. Contingent beneficiaries are usually not entitled to receive copies of these documents. The Trustee can redact trust information not applicable to other beneficiaries.

Claims should be made for all the life insurance policies, and in this instance, each insurance company will need an original (or certified) copy of the death certificate. Similarly, claims should be made by the beneficiaries of the IRAs, §401(k) plans, etc., but the beneficiary should not accept payments under these plans until the income tax consequences are known. The beneficiary will have to pay income taxes (which is in addition to estate tax) for distribution received under these plans; it is advisable to consult with an accountant in that regard. Rather than take a lump-sum settlement, which might place the recipient in a 39.6% income tax bracket, there may be other settlement options available (a surviving spouse is usually granted the privilege of rolling over IRA benefits, but this settlement option is not available to children or other beneficiaries: those persons receive an “inherited IRA”, which means payout options are different that available to surviving spouses – generally, those persons may amortize and receive payments over a 5 year period, or over their lifetimes, based on their life expectancies; charities which are designated as beneficiaries will not pay income taxes on IRAs they may receive, but they must receive their share in a lump sum).

Federal estate taxes must be paid within 9 months after date of death (and state estate or inheritances must also be paid, normally within 9 months after date of death). Federal estate tax returns must be filed if the estate exceeds $5,250,000 (for deaths occurring in 2013 and thereafter). If the combined estates of a husband and wife will exceed that amount (for both estates), then a federal estate tax return should be filed, in order to enjoy the benefits of the Portability Rules (which permit doubling of the estate tax exemptions, i.e., permitting property values less than $10,500,000 to pass to heirs, without federal estate taxes of 40%). The federal estate tax return is due 9 months after date of death.

The Successor Trustee should also procure a taxpayer identification for the trust, since it will be irrevocable on the death of the Settlor (you may apply online for a taxpayer id number; www.irs.gov). If, however, the Successor Trustee is a surviving spouse, who inherits all of the estate, the Successor Trustee may use his or her social security number, as the taxpayer-id number for the trust. In addition to tax issues, the Successor Trustee should pay all of the valid debts of the decedent from trust assets. However, in most instances the Trustee should not use insurance proceeds or retirement funds to pay for these debts.

In addition, the Trustee should reimburse himself or herself for out of pocket expenses, and if the trust so provides, a fee for services rendered as trustee (if a fee is paid to the trustee, the trustee will have to pay income taxes for that fee). The trustee might want to discuss the topic of debts and fees with an attorney.

distributionDistribution of the estate should not be made until after the estate tax releases (if applicable) have been issued by the appropriate taxing agency – and until after all valid debts have been paid. Whoever receives the property being distributed should sign a receipt. Distribution will be made either in kind or by check – and the value of what is distributed will be based on the distribution date, not the date of death. Depending on the year in which the settlor dies, the income tax basis for capital gains purposes will be the date of death value, or the alternate valuation date (which is six months after date of death), as shown on the federal estate tax return. If real estate or minerals are distributed, deeds and assignments will have to be prepared and filed. If stock is distributed, the Successor Trustee should probably retain a stock broker, to assist in the transfer.

Except for IRA, §401(k) distributions, and similar property interests, beneficiaries will not pay income taxes on their inheritances.

It will probably take a minimum of two months to conclude all of these tasks. In addition, the Trustee will have to file a final income tax return for the decedent, and may have to file a fiduciary income tax return (Form 1041). Again, consult with an accountant or lawyer on tax matters.

The trust will continue to be in existence until all trust assets have been distributed. It is a good idea to provide an accounting to the beneficiaries, which will start with an inventory of what was initially held in trust, the income that was earned thereafter, the expenses that were paid (including taxes), the fees that were charged, and the final distribution to the beneficiary in question. Beneficiaries usually have five years within which to contest the actions of the Trustee, so the Trustee should plan on keeping records for at least that period of time.

Keep in mind that the Trustee is a fiduciary, and has an absolute duty of loyalty to each beneficiary. There should be no self dealing. If there are genuine interpretations about what the trustee is required to do, the trustee can always initiate a lawsuit, and request instructions from a state court judge as to what should be done. Such an action will protect the trustee, even though it will mean deals and more expenses in trust administration.

The beneficiaries of the trust estate ought to consult with a financial consultant, before running out to buy a 52” TV or a Lexus. An inheritance ought to be viewed as if it were a herd of Guernsey cattle – the cows ought to be milked, the milk sold and income enjoyed, but the herd should not be sold for barbeque meat. We live in a capitalistic society, and we can increase our net worth through wise investments, not through buying frivolous household items.

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