Consider the case of Andre Leonti, a man who died Fayette
County PA without a will. The hospital refused to release his body to his
lifelong friend, Cheryl Keefer, until
she produced evidence of her authority to administer his estate. She had no
luck with the Fayette County Register of Wills, who would not appoint her
administrator because she could not establish that she was next of kin. So she next
petitioned to the Orphans Court to be appointed administrator of the estate so
she could arrange a funeral and burial for her friend, and use money from his
estate to pay for the service. Although Cheryl held a power of attorney for Mr.
Leonti, that expired upon his death. The court ordered the Register of Wills to
appoint her administrator of the Andre’s estate and ordered the hospital to
release the body to her for burial. Andre’s estate was worth about $ 242,000. Normally the Register of Wills would require Ms.
Keefer to post a bond before administering the estate, but the court order did
not mention any bond requirements.
As often happens, a distant
cousin of the decedent living in Texas became aware of his possible
inheritance, so he sought to have Cheryl Keefer removed as administrator and
the estate, and he appointed in her place. Ms. Keefer not only refused to turn over
the assets, but she also disappeared. Undaunted by this setback, the distant
cousin sued the Register of Wills for failing to obtain the bond.
Normally a government employee is exempt from suit under the
doctrine of “governmental immunity,” and the Register of Wills of Fayette County
thought so, too. The Pennsylvania Supreme Court held otherwise and stated that
the Register of Wills of Fayette County might be liable because of a special Pennsylvania
statute governing when the Register of Wills must require a bond, and they sent
the case back down to the lower court for more fact finding.
If you are appointed to administer an estate, do you need to
obtain a bond? Would you qualify for a bond? Most wills contain a boilerplate
provision stating the executor (also known as the “personal representative”)
need not file a bond. It is there
because of a Pennsylvania Law, similar
to the laws of other states,which direct the Register of Wills to obtain a bond
from a personal representative, unless waived in the will. The law, contained
in Title 20 Pa. C.S.A. Section 3171 to 3175, is too complicated to discuss in detail, but
in most cases, an out of state personal representative must obtain a bond
before they can administer an estate. Since they will control the checkbook,
and have access to all of the funds of the estate, the bond is intended to secure
faithful performance of their duties. A
bond can usually be obtained from an insurance company and most attorneys who
do estate work, such as our firm, have access to companies who issue bonds.
The case brings up a more fundamental question for anyone
who drafts a will. Should you require that the representative obtain a bond? It
is not impossible to purchase a bond, and it may protect your heirs. It would
be pointless if the person you appoint as your personal representative is also your
sole beneficiary, but it would make sense if your personal representative is a
personal friend, yet not an heir of your estate.
Without a will, there is no choice in the decision at all, and
the laws stated above control. Was
Cheryl Keefer a close friend of the decedent who was
shortchanged because the decedent did not leave a will? She was appointed his agent under his power of attorney, and she seemed to be the
only person interested in arranging decedent’s funeral, since his relatives only
stepped forward when they found there was money to be claimed. Or, was she a
neighbor who saw an opportunity to convince the decedent to appoint her agent under his power of attorney, and later pocket the decedent’s money by opening up an
estate in his name and getting appointed administrator? We do not know enough to decide either wasy, but the case
illustrates the importance of having a will.
Have you ever had experience with getting a bond? If so,
comment below.
Stay will until the next post.
Bob
Gasparro
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