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Guidance and a cautionary tale for personal representatives . . . . . .

Posted by Gayla K. Austin | Jul 16, 2022 | 0 Comments

A Case On Passing Away with No Apparent Personal Representative. 

On June 23, 2022 term the Wyoming Supreme court issued a case that includes responsibilities of a personal representative.  It serves as a cautionary tale about the duties of the personal representative, and why it is so important to have a conversation with your personal representative about where your estate documents are for safe keeping. 

In the case, Charles Soames passed away; his friend, Mr. Gifford, received a phone call from a nurse in a Denver hospital that Mr. Soames was nonresponsive.  Mr. Gifford, unaware whether Mr. Soames had any family, knew where Mr. Soames kept his spare key and began tending to his house after this death.  Mr. Gifford cleaned, hauled out garbage and regularly checked on the house.  He did not find a will or any indication that Mr. Soames had any living family.  During the time he was caring for the house, he testified that he took two guns for safekeeping and after he suspected there had been a break in, he took two other guns to have them appraised.  Mr. Gifford consulted his own attorney, and filed a petition for letters of administration and a petition to administer the estate.  Mr. Gifford was appointed personal representative.  

Upon becoming personal representative, Mr. Gifford opened Mr. Soames' safe deposit box and found Mr. Soames' will, which named Mr. Soames' twin sister as his sole heir.  Mr. Gifford called her and told her her brother had died and left her his estate.  Mrs. Cynthia Soames, the sister, lived in Indiana and travelled to Wyoming to handle the estate.  When Cynthia Soames went through Mr. Soames estate, she felt that items were missing and claimed she did not understand why Mr. Gifford was involved in the first place.  Cynthia Soames replaced Mr. Gifford as personal representative.  She filed an inventory and appraisal of estate assets.  

Cynthia Soames filed a claim against Mr. Gifford that there were items missing from the estate.  Mr. Gifford argued that he was the one who found the will, and he immediately contacted Cynthia Soames, and that he was happy to turn over responsibility.  

At the hearing the court found that Cynthia Soames failed her burden to prove that Mr. Gifford took or failed to return estate property.  The court found that Cynthia Soames failed to prove that the items she thought were missing were still owned at the time of his death.  It was unclear whether and when Mr. Soames had created the list, and Cynthia Soames had not seen Mr. Soames in almost 25 years and had never been to his home.  The court reasoned that Mr. Soames could have sold or given away or lost some or all of the items, and that Mr. Gifford returned the items he took for safekeeping.  He testified that he took on the position of personal representative only after being called by the hospital and understanding that there was no other person to act.  He testified that he did what he believed he could do as personal representative without doing more than authorized and immediately turned over the job to Cynthia Soames when he discovered Mr. Soames' will in the safe deposit box.  

The court found Mr. Gifford's testimony to be credible and found for him in the actions he took following the death of Mr. Soames. 

How to Avoid Your Personal Representative or Beneficiary Being Sued:  

1.  Have a conversation:  When you complete your estate plan, make sure your Personal Representative knows they are appointed and knows where your estate planning documents are located.  While you do not have to and should not reveal the contents of your estate planning documents, have a conversation with your Personal Representative about the location of your documents.  Keep in touch with your Personal Representative and make changes if necessary.  

2.  Personal Representative Alternates:  Your estate plan documents should name a primary Personal Representative and an alternative.  It is advisable to name a third alternative if the first or second choice become unwilling or unable to serve.  

3.  Frequent Review of Documents:  Periodically review your estate planning documents.  It is a common misconception that once you prepare your will or trust, you do not have to review it or change it.  Review your documents approximately every other year and update them. 

4.  Use of Available Tools:  There is a tool called a "Memorandum of Personal Property" that is prepared together with your estate planning documents to list to whom you wish to bequest your personal property.  This document is purposefully outside your will or trust so that you can update it periodically.   There is also a beneficiary designation for each of your accounts that indicate who owns your account on your death.  

Please contact me at 307.200.1914 if you have questions or would like assistance regarding designation of your personal representative.   

 

About the Author

Gayla K. Austin

I enjoy helping clients put it all together with legal advice regarding real property, estate planning and business entities.

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