When Estate plans are made, at times even the best of intentions can become mired in the confusion of how to distribute property. Because the person for whom the Estate documents were drafted is no longer present, there can be uncertainty as to their final wishes. Sometimes a will may include conflicting provisions or ambiguous instructions, or a codicil that was added that may contradict the body of the will. There may be uncertainty as to whether certain assets listed are part of the estate.
When the representative of the estate, often the Executor or Trustee, is uncertain as to proper action regarding an Estate whether because of questionable wording of a will or for other material reasons, Virginia Courts offer a remedy through the guidance of what is known as a Suit for Aid and Direction.
Essentially, a Suit for Aid and Direction is for the personal representative of an Estate to ask for advice from the Virginia court. “[A] fiduciary is not required to act at his peril; he need not eat the doubtful vegetable in order to ascertain if it is a wholesome mushroom or a poisonous toadstool, …” Gaymon v. Gaymon, 63 Va. Cir. 264 (Cir. Ct. 2003)(citing Harrison, Wills and Administration, § 560, at 231)
Executors and Trustees are known as “fiduciaries” when they are acting to settle an Estate. A fiduciary has a responsibility to ensure that the wishes of the deceased are carried out to the best of their ability. A suit for aid and direction is a tool the fiduciary can use to ensure the will is interpreted to the best knowledge of the law rather trying to determine the meaning of a will that may be open to differing interpretations. The use of the judiciary is to preserve neutrality among the potential beneficiaries. In addition, it has the added benefit of insulating the fiduciary from liability. The fiduciary, who is often a layperson, should not have to make decisions regarding the legal interpretation of vague or confusing estate planning documents.
In cases where there is doubt or difficulty settling an estate, the cost of bringing a suit for aid and direction is usually borne by the estate, not by the personal representative so long as it is presented before the estate assets are depleted. In addition, the personal representative (fiduciary) needs to show that the suit is brought to protect the Estate and/or the beneficiaries. The purpose of the suit should not be solely for the benefit of the fiduciary.
The ultimate purpose of the suit is to obtain a final order from a judge which interprets the will, estate or trust. If you are the personal representative for an estate and you have concerns, certainly contact my office to discuss how I may assist.
Ryan C. Young | Richmond, VA | Estate Litigation Attorney
