What is a resident agent's role in probate?
September 18, 2013 9:38 AM
Someone I know has been asked to serve as a resident agent, in an estate probate case where the estate's administrator does not live in the state where the probate is venued. What could possibly go wrong?
On the face of it, the resident agent is required because the court must have a permanent resident on record. The appointment of agent document says "I appoint ___ to serve as my agent and accept service of any legal process."
Some googling indicates that the resident agent must accept notice of any party's claims against the estate, and I presume the agent is responsible for conducting such correspondence to the administrator (and/or the court?)
I'm not sure what exactly that entails, and wonder also are there any other ramifications? Is there any potential liability the resident agent accepts? What if a claim is served to the resident agent but not received or acknowledged in some time window by the administrator?
Basically, are there any pitfalls to consider before someone accepts this appointment?
I have been told that sometimes people become RAs to pick up a few extra bucks, and that it is straightforward, but I always advise not signing something one doesn't fully understand.
The person in question isn't involved in the estate, though is family so the potential for any ill will is a consideration (no pun intended!)
Hoping to hear back from anyone here who has seen what can go horribly wrong.
I know you are not my lawyer, but thanks in advance for your war stories!
On the face of it, the resident agent is required because the court must have a permanent resident on record. The appointment of agent document says "I appoint ___ to serve as my agent and accept service of any legal process."
Some googling indicates that the resident agent must accept notice of any party's claims against the estate, and I presume the agent is responsible for conducting such correspondence to the administrator (and/or the court?)
I'm not sure what exactly that entails, and wonder also are there any other ramifications? Is there any potential liability the resident agent accepts? What if a claim is served to the resident agent but not received or acknowledged in some time window by the administrator?
Basically, are there any pitfalls to consider before someone accepts this appointment?
I have been told that sometimes people become RAs to pick up a few extra bucks, and that it is straightforward, but I always advise not signing something one doesn't fully understand.
The person in question isn't involved in the estate, though is family so the potential for any ill will is a consideration (no pun intended!)
Hoping to hear back from anyone here who has seen what can go horribly wrong.
I know you are not my lawyer, but thanks in advance for your war stories!
Every legal entity that is not an actual living person needs some way for people to track it down and get in touch with it; this is what the resident agent (or "agent for service of process") is for. Usually this means a corporation but alas, now that the decedent has died, his or her estate is also such an entity. The resident agent's purpose is to appear in any public documents or databases as the default way to get a hold of that estate. So if someone out there thinks, for instance, that the estate owes them money, and all they know is that they are looking for "the estate of Mr. XYZ in Vermont," the resident agent is the person they should be able to track down via public records.
Personally I have never done this for estates, and I don't know where to start; my experience is in tracking down corporate agents for service of process. And in my experience, their only real role is to receive any such legal "process," i.e., formal service of documents, and convey it to the entity or his/her attorney (here, probably the administrator you mentioned) ASAP, and that's it. Generally they must have a physical address to list because process may be served by several means, including personal delivery by hand, FedEx, etc. - not just US Mail (though that is very common).
Typically that's it. I cannot offer legal advice on your specific situation, but it is difficult to imagine anyone having a reason to sue or otherwise cause trouble for a resident agent as long as they are performing this task with reasonable diligence. Typically they have no personal involvement with any legal dispute that occurs; they are just a conduit for the initial documents. After the administrator and the claimant get in touch, there is generally no more reason to contact the RA at all. At most, they may be required to testify about EXACTLY what happened with respect to a particular service packet, if there is later a dispute about the timing or means of service.
posted by Joey Buttafoucault at 9:55 AM on September 18, 2013
Personally I have never done this for estates, and I don't know where to start; my experience is in tracking down corporate agents for service of process. And in my experience, their only real role is to receive any such legal "process," i.e., formal service of documents, and convey it to the entity or his/her attorney (here, probably the administrator you mentioned) ASAP, and that's it. Generally they must have a physical address to list because process may be served by several means, including personal delivery by hand, FedEx, etc. - not just US Mail (though that is very common).
Typically that's it. I cannot offer legal advice on your specific situation, but it is difficult to imagine anyone having a reason to sue or otherwise cause trouble for a resident agent as long as they are performing this task with reasonable diligence. Typically they have no personal involvement with any legal dispute that occurs; they are just a conduit for the initial documents. After the administrator and the claimant get in touch, there is generally no more reason to contact the RA at all. At most, they may be required to testify about EXACTLY what happened with respect to a particular service packet, if there is later a dispute about the timing or means of service.
posted by Joey Buttafoucault at 9:55 AM on September 18, 2013
Thanks for the answers! I'd think definitely keeping complete records is wise.
I am wondering what if the agent is unable to reach the administrator or there is doubt later as to whether some paperwork was received. I suppose it's wise to send everything certified with return receipt requested. Should the agent be unable to perform service, might he be liable later on? Is there a court filing he would need to make to document that failure?
I know these questions are probably in the realm of "consult a lawyer", which will probably happen.
posted by maniabug at 10:25 AM on September 18, 2013
I am wondering what if the agent is unable to reach the administrator or there is doubt later as to whether some paperwork was received. I suppose it's wise to send everything certified with return receipt requested. Should the agent be unable to perform service, might he be liable later on? Is there a court filing he would need to make to document that failure?
I know these questions are probably in the realm of "consult a lawyer", which will probably happen.
posted by maniabug at 10:25 AM on September 18, 2013
Does a resident agent's responsibility endure beyond the completion of probate? Can a will go back into probate once the case is closed, with the original RA required to perform service in the interim?
Thinking far fetched worst case scenarios, like the resident agent moves away after probate is ended, and postal forwarding expires, and he doesn't notify the court, so a claimant can't contact the agent, etc.
I will try not to make this question any more ridiculous :)
posted by maniabug at 10:31 AM on September 18, 2013
Thinking far fetched worst case scenarios, like the resident agent moves away after probate is ended, and postal forwarding expires, and he doesn't notify the court, so a claimant can't contact the agent, etc.
I will try not to make this question any more ridiculous :)
posted by maniabug at 10:31 AM on September 18, 2013
I am wondering what if the agent is unable to reach the administrator or there is doubt later as to whether some paperwork was received.
The agent must not be "unable to reach the administrator." If the potential agent thinks that may be the situation, he/she should decline to be the resident agent. The point is to convey the documents quickly and reliably. For example, if physical documents are received, scan and email to the agent on the same day, then forward the physical packet via mail. The administrator should be an attorney or other professional with a persistent way to receive such things (e.g., business email address, mail drop or office to receive mail).
Does a resident agent's responsibility endure beyond the completion of probate? ... like the resident agent moves away after probate is ended...
If the resident agent is going to move away or otherwise be unable to continue to perform the required tasks, another RA should be appointed at that time. Or, if it genuinely appears that everything has been disbursed and it's really winding down, he/she should confirm (with the administrator or someone) that RA service will no longer be required for this estate.
posted by Joey Buttafoucault at 1:26 PM on September 18, 2013
The agent must not be "unable to reach the administrator." If the potential agent thinks that may be the situation, he/she should decline to be the resident agent. The point is to convey the documents quickly and reliably. For example, if physical documents are received, scan and email to the agent on the same day, then forward the physical packet via mail. The administrator should be an attorney or other professional with a persistent way to receive such things (e.g., business email address, mail drop or office to receive mail).
Does a resident agent's responsibility endure beyond the completion of probate? ... like the resident agent moves away after probate is ended...
If the resident agent is going to move away or otherwise be unable to continue to perform the required tasks, another RA should be appointed at that time. Or, if it genuinely appears that everything has been disbursed and it's really winding down, he/she should confirm (with the administrator or someone) that RA service will no longer be required for this estate.
posted by Joey Buttafoucault at 1:26 PM on September 18, 2013
In my experience, the only possible problem/drawback is when the principal disappears and remains incommunicado for extended periods. That sometimes happens with small corporations; in that case the RA resigns because he cannot do his job.
posted by yclipse at 2:21 PM on September 18, 2013
posted by yclipse at 2:21 PM on September 18, 2013
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I work at a company that, among other things, serves as a Registered/Resident Agent for corporations. The entirety of our duties is accepting service of process, archiving a copy, and forwarding it to the person whose agent we are in a timely manner.
Every step of the process is documented and timestamped -- whether by BCCing ourselves on outgoing emails, or sending things certified mail -- so there's no reasonable way we can be accused of not having forwarded something, assuming that we actually did.
posted by griphus at 9:52 AM on September 18, 2013