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  1. #1
    LABH is offline Junior Member
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    Turning over decedent's complete file to PR of estate if asked to do so

    What is the name of your state (only U.S. law)? Fl

    As PR of my brother's estate I have asked the attorney (who is representing me) to give me my brother's complete file. I have asked this because of some conflicting information regarding an amendment stating I was trustee after my brother's death, which now he states there is no amendment. Does he have to give me my brother's complete file or do I have to go through the court?What is the name of your state (only U.S. law)?
  2. #2
    tranquility is offline Senior Member
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    I think the ethical duty only extends to the principal and not his estate. You may need to get it through discovery and, even then, there are defenses to turning it over. Also as personal representative (have you been appointed by a court yet?), you would not have control over a trust and no reason to see it.
  3. #3
    LABH is offline Junior Member
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    Yes, I have been appointed by the court as PR. I am also going to have to sign off on the Trust tax return as stated by the CPA.....so it is in my best interest to know what is going on with the trust when I am signing a return.
  4. #4
    LABH is offline Junior Member
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    Although the personal representative is primarily responsible for the administration of the estate, the law recognizes that the personal representative is required to retain the services of an attorney and may be required to obtain the services of other profressionals such as accountants, trust officers, appraiser, and in some instances, investment advisors.
  5. #5
    tranquility is offline Senior Member
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    Unless you are the trustee, how can you sign off on the trust tax return? The PR has no rights there and cannot sign the return. Perhaps you mean the fiduciary return for the estate?

    Although the personal representative is primarily responsible for the administration of the estate, the law recognizes that the personal representative is required to retain the services of an attorney and may be required to obtain the services of other profressionals such as accountants, trust officers, appraiser, and in some instances, investment advisors.
    How does this fact relate to the prior representation by an attorney with the deceased?
  6. #6
    LABH is offline Junior Member
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    The CPA's plan is to combine the estate and the trust tax return...I would still need to know what is going on with the trust.
  7. #7
    seniorjudge is offline Senior Member
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    Quote Originally Posted by LABH View Post
    The CPA's plan is to combine the estate and the trust tax return...I would still need to know what is going on with the trust.
    Then get another CPA; this one doesn't know what he's doing.

    Also, no one else has mentioned it so I will: change lawyers. The guy is unethical; he has a major conflict of interest here and should never have accepted the case.
    There are two rules for success:

    (1) Never tell everything you know.
  8. #8
    tranquility is offline Senior Member
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    We can dribble facts out all day (I disagree with SJ that the CPA is per se incompetent.) but it doesn't change the fact that the trustee is the only one who can sign the trust return. If you are not the trustee, you cannot sign the return. If you are, you should have a signed copy of the trust in your possession already.

    In either event, the attorney is not responsible to be the trust's record keeper. If there is a valid trust out there, the trustee at the time has already been supplied with it and the client's "file" (which is a technical term) may no longer include the trust docuement. If it did, it would not be the legal copy which can be acted upon. I don't think the attorney has an ethical duty to turn what he has over to you.

    If things are subject to litigation, you may be able to discover the document. But, lack of privity, lack of right, and the defense of it not being designed to elicit relevant evidence are all possibilitites the attorney may use to not turn it over.

    Besides, there is something in the way you ask and the way the information comes out which makes me doubt the reasons why you "need" a copy. But, as a final answer, you don't "need" a copy unless you are the trustee.
  9. #9
    seniorjudge is offline Senior Member
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    Quote Originally Posted by tranquility View Post
    ...
    I disagree with SJ that the CPA is per se incompetent.
    ...
    I was thinking that the trust and the estate are two totally different entities.
    There are two rules for success:

    (1) Never tell everything you know.
  10. #10
    tranquility is offline Senior Member
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    Yes, but if there is a pourover will to the trust, even though there may be a short time with some income in the estate, many will just assume the income belongs to the trust. It doesn't really make a difference and it saves a lot in compliance costs. That's often the way we treat it and have never been questioned.
  11. #11
    seniorjudge is offline Senior Member
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    Quote Originally Posted by tranquility View Post
    Yes, but if there is a pourover will to the trust, even though there may be a short time with some income in the estate, many will just assume the income belongs to the trust. It doesn't really make a difference and it saves a lot in compliance costs. That's often the way we treat it and have never been questioned.
    Fine by me...I can't figure out a 1040...
    There are two rules for success:

    (1) Never tell everything you know.
  12. #12
    LABH is offline Junior Member
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    I have already signed off on the 706 estate tax return (rough draft)filing for an extention. We now have two months before the final estate tax return is due and I believe the CPA said July for the Trust Return. The trustee wrote a check from the revocable trust fund to the IRS. There is a irrevocable trust but no one seems to know anything about it. Not even the attorney that drew it up. The attorney that is representing the trust knows nothing about it. My brother obviously had it for a reason. It is spelled out exactly how he wants his money treated after his death. (I have copies of both trusts). When I get the amendment appointing me as trustee after his death, I will see that his wishes are followed. But, for the time being I will not sign anything in regards to the trust.

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