What is a Formal Accounting?
The fiduciary (Executor or Trustee) submits a Formal Accounting to the court, as well as to all interested parties. The fiduciary files Formal Accountings in specific, detailed formats. It takes a great deal of time to learn these formats. To save time, judges want all Accounting in the same format. A Formal Account will require a filing fee and at least one court appearance.
What is an Informal Accounting?
The fiduciary creates and submits an Informal Accounting and submits it only to the interested parties without court oversight. An Informal Accounting’s complexity will depend on what information the interested parties require and the assets being accounted for. Some beneficiaries only want copies of bank statements while others require detailed breakdowns, property appraisals, and reports.
Reasons to Compel a Formal Accounting:
An interested party does not need a specific reason to compel a Formal Accounting because obtaining a Formal Accounting is a right. But, Formal Accountings are expensive and time consuming so they shouldn’t be sought after lightly. Common reasons to seek a Formal Accounting include if you believe the executor, agent or trustee has committed Theft, Misappropriation of Property, Co-Mingled Assets or has Abused Power. Suspicion that these acts took place is not enough, you must provide the judge with compelling evidence.
If you are an interested party believe that an Executor, Agent or Trustee has stolen property, misappropriated property, co-mingled assets or abused power, it is wise to hire an Estate Litigation Attorney to force the fiduciary to file a Formal Account. In this process, the Estate Litigation Lawyer can obtain an order allowing discovery. This allows the lawyer to depose the fiduciary, subpoena evidence, obtain records and interview witnesses.
If the fiduciary will rectify the harm, the judge will hold a hearing where the Estate Planning Lawyer will present the evidence gathered. If after hearing all the evidence the judge finds the fiduciary was wrong, the judge can order the asset returned and charge the fiduciary for expenses and order the fiduciary’s removal, sometimes ordering the fiduciary to pay for attorneys’ fees.
Should I Provide a Formal Accounting or an Informal Accounting?
The ultimate goal of every accounting is to satisfy the interested parties enough to release the fiduciary from liability. Depending on the complexity of the matter and the litigiousness of the parties involved, a Formal Accounting can expensive and time-consuming. Therefore, an Informal Accounting is often more desirable. But sometimes an Informal Accounting just won’t work. The personalities involved or the real or perceived wrongful acts may require a Formal Accounting.
Accountings by Agents, Powers of Attorney
A Durable General Power of Attorney gives an “Agent” power to manage assets. Because the agent has access and control over the principles financial accounts, an interested person can compel the agent to file a formal accounting, explaining every action taken and justifying every expense. In the alternative, in order to obtain a release of liability, an agent can assemble, submit and defend a formal accounting.
Assembling, Submitting and Defending Accountings for Agents
If you served as an Agent you would be wise to receive a legal release for your service. First of all, long after you have completed your duties the court might force you to file a Formal Accounting if you have no release. Further, it is better to file your Accounting when you still have the funds to pay for the costs. Delaying may prove costly. Especially relevant, you will personally shoulder the cost to assemble and defend the Formal Accounting.
Has a beneficiary has obtained a court order compelling you to account? If so, it would be wise to have the Formal Accounting prepared and defended by an experienced Accounting Lawyer. If you are unprepared, the judge could surcharge you for any amount you cannot properly explain.
Compelling An Agent To Account:
Are you are an interested person who believes an Agent has abused their powers? If so, you may have your Estate Litigation Attorney file a petition forcing the Agent to file a Formal Accounting. Once filed, the interested parties may Contest and Object to the Accounting. If the judge believes the Agent’s actions wrongfully reduced the estate, then the judge may surcharge the Agent. If the Agent cannot recover the funds, the Agent must replenish the estate with the Agent’s own funds.
Accountings by Executors
Some states use the term Executor while others use Personal Representative to describe the fiduciary named in a Will. When there is no Will the state appoints an Administrator. Whatever your title, obtaining a full release of liability before distributing any estate assets is essential. Beneficiaries have the legal right to force the executor to file a formal accounting. This accounting must detail every asset and justify every expense. These are estate expenses. If the Personal Representative has already distributed the estate assets then there are no funds to pay this bill. But, the Executor must still incur the cost which will then likely come from the Executor’s own funds. The court has little pity for an Executor who fails to obtain the release before foolishly distributing funds. For this reason, if the beneficiaries refuse to sign an Informal Accounting, the wise Executor Assembles, Files and Defends a Formal Accounting while the estate still has funds to pay the legal bills.
Executor’s Defensive Accountings, Defending Accountings for Executors:
Executors are subject to personally liable if they mishandle the estate’s assets. Therefore, Executors, Personal Representatives or Administrators may retain an experienced Probate Attorney using estate funds. Further, you may use estate funds to hire an experienced Accounting Lawyer. This lawyer can prepare, file and defend a Formal Accounting. There is no excuse for making a distribution without first obtaining your protective release. If the beneficiaries will agree to sign an Informal Accounting, all the better. But if even one beneficiary refuses, then the accounting’s cost is a justifiable estate expense.
Has a Beneficiary has obtained a court order compelling you to account? If so, it would be wise to have the Formal Accounting prepared and defended by an experienced Accounting Lawyer. If you are unprepared, the judge could surcharge you for any amount you cannot properly explain.
Forcing an Executor To Account:
An interested beneficiary has the right to refuse to accept an Informal Accounting. Instead, the beneficiary may retain an experienced accounting attorney. This lawyer can force the Personal Representative to prepare, file and defend a Formal Accounting. Once filed, interested parties may contest and object to the accounting, pointing out errors, lies or misleading entries. If the Executor or Administrator has acted in a way that reduces your inheritance, the judge can surcharge the Executor. The court may order any difference made up from the Executor’s own funds.
Accountings by Trustees
A Trustee has a fiduciary duty. The beneficiaries, therefore, have the right to force the Trustee to file a Formal Accounting. In this accounting, the Trustee must explain every transaction and justify every expense. The interested parties may contest and object to the Accounting’s terms. If the Trustee’s actions have wrongfully reduced the trust assets, the judge may surcharge the Trustee. The Trustee must use the Trustee’s own funds to replenish the Trust.
Defending Accountings for Trustees:
A Trustee can be personally liable. Therefore, expenses incurred in obtaining an experienced Estate Planning Lawyer’s advice are reasonable, ordinary and deductible. First of all, the wise Trustee each year obtains a legal release for all actions taken the prior year. The Accounting Attorney accomplishes this with an Informal Accounting release. If the beneficiaries will not sign an Informal Accounting release, the Accounting Attorney can prepare, file and defend a Formal Accounting. Especially relevant, the cost of preparing, filing and defending the Formal Accounting is a deductible, normal trust expense.
Has a Beneficiary has obtained a court order compelling you to account? If so, it would be wise to have the Formal Accounting prepared and defended by an experienced Accounting Attorney. Most noteworthy, the judge could surcharge you for any amount you do not properly explain.
Compelling Accountings for a Trustee:
A Trust beneficiary has the right to retain an accounting lawyer. As a result, the beneficiary then has an advocate who will petition the court to force the Trustee to file a Formal Accounting. The Trustee must comply. The Formal Accounting must detail all assets and justify all expenses. The Accounting Attorney may then Object to anything in the Formal Account. If the judge believes the Trustee’s actions reduced the trust the judge may surcharge the Trustee. If the Trustee cannot recover the funds, the Trustee must use the Trustee’s own funds to pay the surcharge.
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