You just found out that your favorite Aunt Melba has died. Apart from the grief and sadness, you also receive a notice from the lawyer handling Aunt Melba’s affairs stating you are a beneficiary. Your best friend advises you to get a lawyer. What should you do? Will Aunt Melba’s attorney help you? After all, Aunt Melba’s attorney has been helping your family for years. Since this lawyer knows Melba and the family affairs, won’t he help you as well?
That answer depends on the circumstances. First, you need to know who the attorney who notified you represents and how that affects you. If Aunt Melba had a Will, then the attorney will be representing the Executor (or Personal Representative) named in the Will. The process of administering a Will is known as a “probate” process because administering the terms of a Will usually involves Court supervision. The Executor is in charge of paying the obligations of someone who has died, notifying beneficiaries, selling her property, and transferring her property to her beneficiaries. Generally, the Executor must provide official notice to beneficiaries under the Will along with a copy of the Will and an inventory, or a list of money and property that the person who died owned.
On the other hand, if Aunt Melba had a Trust that held all of her property, life savings, and personal belongings, chances are good that the attorney is representing the Trustee, or manager, of Aunt Melba’s Trust. A Trustee’s role is to manage the property in the Trust, pay any bills and distribute the assets to the beneficiaries according to the instructions of the Trust. A Trustee is not supervised by a Court and has the ability to sell the property and pay debts without approval or notice to beneficiaries. If you are a beneficiary to a Trust, the Trustee may not be required to provide you an inventory or list of assets in the Trust.
So, when should you consider hiring an attorney to represent you?
1. If you question the validity of Will or Trust. If there is a question about whether your loved one’s Will or Trust was done correctly, you should consider getting a lawyer to represent you in challenging the legality of the Will or Trust. Generally, in order to have a valid Will, a person must have had the ability to understand that she was intentionally creating a Will or Trust. In other words, she wanted to write a Will and leave instructions on how her money and property should be given when she dies. Also, she must have signed the Will or Trust without being influenced or under the pressure of another person. If you are worried that Aunt Melba has suffered from a medical condition that prevented her from being able to understand a Will or if you suspect her nurse or boyfriend influenced her into signing a Will she did not want, you may consider hiring a lawyer to file an action in the Court to contest the validity of her Will or Trust.
2. If there are no estate planning documents. If you believe you are a beneficiary or heir to someone who has died, but your loved one did not have a Will, Trust or any writing designating beneficiaries, then the Court may need to be involved to determine who should inherit from your loved one. This process is often known as a Determination of Heirship. Generally speaking, the law of the state where your loved one resided or died will determine who should inherit and what the pro-rata inheritance is for each heir. In some states, like Louisiana, California, Texas and Nevada, where the type of property is categorized as community property and separate property, figuring out who gets what becomes even more complicated because the answer depends on the type of property the loved one owned. If you are an heir of someone who died, you should contact a lawyer to represent your interests. Without a Trust or Will, someone must initiate the process on behalf of the loved one’s Estate to determine the heirs. The person that initiates the process may request, through his lawyer, to be appointment by the Court as the administrator of the Estate of the loved one. If such a process has not been initiated, you could consider initiating the process yourself through your lawyer or simply have your lawyer help you understand your rights and serve as your voice through the process.
3. If you have concerns about the Executor or Trustee’s actions or ability to fulfill the role. Another time when you may consider hiring counsel to represent you is if you are concerned about the ability or capacity of the Executor or Trustee to carry out their duties. If the Executor named under the Will or the serving Trustee is exhibiting signs himself of diminished capacity or medical concerns that greatly inhibit his ability to perform his duties, it may be necessary to request the Court to replace him with a backup Executor or Trustee. Your attorney, on behalf of your interest as beneficiary, would file an action with the Court. The action would ask the Court to make a decision about whether that Executor or Trustee is mentally capable of effectively carrying out his duties or should be replaced. Similarly, if the Executor or Trustee was acting erratically or in a manner that was not in the best interest of the Estate and/or Trust, your lawyer could represent you in requesting a detailed list of transactions that the Executor or Trustee has taken. If your concerns are not resolved, your attorney could file an action on your behalf asking the Court to require the Executor or Trustee to account for his actions. In either case, if the Court decides the person is not fit to serve, your attorney could request that you are nominated as successor or that you request that someone else is named as successor.
4. Failure to Communicate. Executors and Trustees must keep beneficiaries informed of the beneficiary’s status and the terms of the Will or Trust. As mentioned above, the duty of an Executor to communicate is overseen by the Court. A Trustee, however, is free to act without Court supervision and some Trusts allow the Trustee to act with minimal communication to the beneficiaries. If you are a beneficiary and are not receiving communication from the named Executor or Trustee, your attorney can communicate on your behalf with that Executor or Trustee and explain your concerns and request information or an informal accounting. An informal accounting would be a list of property and debts and a status of the steps the Executor or Trustee has taken so far in the administration of the Estate or Trust. After reviewing the accounting, you and your lawyer could decide whether additional inquiries were needed such as receipts or details transactions made. If you are still not satisfied, your attorney could file an action for a formal accounting in Court on your behalf.
5. Understanding Your Gifts Under the Will Or Trust. If you have a question as to what you should be receiving or what your share should be made up of under the Will or Trust, you may want to hire an attorney to explain the terms of the Will or Trust to you. In addition, that attorney can explain the laws in the state and the characteristics of the different types of property that your loved one owned. Some gifts are divided between several people so you may end up with a fractional interest in land or a brokerage account. Your lawyer can help you understand what you will be getting under the Will or Trust before you waive your right to challenge the Will or Trust.
6. Decoding A Complex Estate or Trust. If there is a complex Estate and you need help interpreting what the Trustee or Executor is sending you, you may want to hire a lawyer to make sure you understand your rights and responsibilities. Some Estates or Trusts are more complex than others and beneficiaries may be required to not only receive, but acknowledge receipt of different legal documents. Sometimes, an Executor must obtain signed waivers from all named beneficiaries under a Will or beneficiaries at law (if the Will is not considered valid) in order to proceed with the probate (administration) of a Will. Before signing a waiver, you should talk to an attorney before you give up your rights. In addition, Executors and Trustees may provide very complicated accountings or inventories of the Estate or Trust to the beneficiaries. The more complex the Estate, the more complicated these accountings or inventories can become. Before simply setting these papers to the side and assuming they are correct, talk to a lawyer and get a professional opinion.
Simply being named as a beneficiary under a Will or Trust does not mean you have to hire a lawyer to represent you. However, there are several instances when seeking the professional advice of a probate lawyer can help you understand and assert your rights as a beneficiary. The important thing to know is to get involved, ask questions, and understand the legal process. Most states and local governments have references available online where you can learn more about your state’s wills or trust laws. However, we have a team of lawyers ready to assist you if you need professional advice or even where to begin once you get that notice that you are a beneficiary.