Madison Wisconsin's Estate Planning Blog

Wednesday, January 6, 2021

My Loved One Has Died: As an Heir or Beneficiary, Do I Need an Attorney?

You just found out that your favorite aunt, Aunt Melba, has died. In the midst of your grief and sadness, you receive a notice from the attorney handling Aunt Melba's affairs stating that you are a beneficiary. Your best friend advises you to get an attorney. 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 attorney knows Melba and the family affairs, shouldn't her attorney be able to help you as well?


That answer depends on the circumstances. First, you need to know who the attorney 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 through a process called administration. The process of administering a will is also known as a probate process because administering the terms of a will usually involves court supervision. The executor is in charge of paying Aunt Melba’s debts and expenses, 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 Aunt Melba’s will and an inventory (a list) of money and property that she owned.


On the other hand, if Aunt Melba had a revocable living trust that held all of her property, life savings, and personal belongings, the chances are good that the attorney is representing the trustee of Aunt Melba's trust. A trustee's role is to manage the trust’s accounts and property, pay any bills or expenses, and distribute the money and property to the beneficiaries according to the trust’s instructions. A trustee is not formally supervised by the court and can sell the property and pay debts without approval or notice to beneficiaries. If you are a beneficiary of the trust, the trustee may not be required to provide you an inventory or list of assets in the trust, though the trustee must provide you with some information, such as an accounting of the trust’s money.


So, when should you consider hiring an attorney to represent you?


  1. If you question the validity of the will or trust. If there is a question about whether your loved one's will or trust was done correctly, you should consider getting an attorney to represent you in challenging the legality of the will or trust. Generally, to have a valid will, a person must have had the ability to understand that the person was intentionally creating a will or trust. In other words, the person wanted to write a will and leave instructions for how the person’s money and property should be given when he or she dies. Also, the person must have signed the will or trust without being influenced or under pressure from another person. If you are worried that Aunt Melba suffered from a medical condition that prevented her from being able to understand her will, or if you suspect her nurse or boyfriend influenced her into signing a will she did not want, you may consider hiring an attorney to file an action in court to contest the validity of her will or trust.


  2. If there are no estate planning documents. Suppose you believe you are a beneficiary or are a close family member of someone who has died, but your loved one did not have a will, trust, or any writing designating beneficiaries. In that case, the court may need to be involved in determining who should inherit from your loved one. This process is often known as a determination of heirship. Generally, the law of the state where your loved one resided or died will determine who should inherit and how much each person will receive. In some states, where the type of property is categorized as community property and separate property, identifying who gets what becomes even more complicated because the answer depends on the type of property the loved one owned.


    If you are a close family member of someone who died, you should contact an attorney to represent your interests or determine if you have any 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 initiating the process may request, through an attorney, appointment by the court as administrator of the loved one's estate. If such a process has not been initiated, you could consider initiating the process yourself through your attorney, or you may simply want to have your attorney help you understand your rights and serve as your voice during the process.


  3. If you have concerns about the executor’s or trustee's actions or ability to fulfill the role. If you are concerned about the ability or capacity of the executor or trustee to carry out his or her duties, you may consider hiring an attorney to represent you. If the executor named under the will or the serving trustee is exhibiting signs of deteriorating mental capacity or medical concerns that greatly impact the executor’s or trustee’s ability to perform his or her duties, it may be necessary to request that the court replace the executor or trustee with a backup executor or trustee. Your attorney, on behalf of your interest as beneficiary, would ask the court to decide whether the acting executor or trustee is mentally capable of carrying out his or her legal duties or should be replaced.


    Similarly, if the executor or trustee was acting erratically or in a manner that was not in the best interests of the estate or trust beneficiaries, your attorney could represent you in requesting a detailed list of actions 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 explain any questionable actions. In either case, if the court decides the person is not fit to serve, your attorney could request that you, or someone else, be appointed to serve as successor executor or trustee.


  4. If there is a failure to communicate. Executors and trustees must keep beneficiaries informed of the beneficiaries’ status and the relevant terms of the will or trust. As mentioned, the duty of an executor to communicate is overseen by the court. A trustee, however, is typically 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 attorney can decide whether additional information is needed, such as receipts or details of transactions made. If you are still not satisfied, your attorney could file an action on your behalf for a formal accounting in court.


  5. If you need help understanding your gifts under the will or trust. If you have a question as to what you should receive or what your share is 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 relevant state and the characteristics of the different types of property that your loved one owned. If some gifts are divided between several people, you may end up with a fractional interest in land or a brokerage account. Your attorney 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. If you need assistance 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 an attorney to make sure you understand your rights and responsibilities. Some estates or trusts are more complex than others, and beneficiaries may be required to receive and 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) to proceed with the probate of a will. Before signing a waiver, you should talk to an attorney before you give up your rights. Also, 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 aside and assuming they are correct, talk to an attorney and get a professional opinion.


Being named as a beneficiary under a will or trust does not mean you have to hire an attorney to represent you. However, there are several instances when seeking the professional advice of a probate attorney can help you understand and assert or protect your rights as a beneficiary. The important thing is to get involved, ask questions, and understand the legal process. Most states and local governments have online resources where you can learn more about your state’s wills and trusts laws. We also have a team of legal professionals ready to assist you if you need professional advice or help knowing where to begin once you learn that you are a beneficiary.



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