If a loved one passes away and you discover that you are a beneficiary of their estate, do you need to hire an attorney? Short answer: not necessarily, but possibly. Do you know what to do when you are a beneficiary of an estate? Here are some circumstances in which you might wish to seek the assistance of an attorney:
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 this is not the case, 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 is no estate planning document(s). 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. 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 appointed by the Court as the administrator of the Estate of the loved one.
3. If you have concerns about the Executor or Trustee’s actions or ability to fulfill the role. Because most of us do not know what to do when you are a beneficiary of an estate, 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. 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, 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 of 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.
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, and we can assist you if you need professional advice or help you know where to begin once you get that notice that you are a beneficiary. So, now you know what to do when you are a beneficiary of an estate!