As an Heir or Beneficiary, Do I Need an Attorney? | The KC Estate Planner
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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.  The attorney told you that you are Aunt Melba’s 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 the attorney knows the family affairs, should her attorney be able to help you as well?

The answer depends on the situation. 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 named in the will. It will go through a process called administration.

Administrating a will

Probate is the process of controlling a will. Administering the terms of a will usually involves court supervision.

The executor is in charge of paying Aunt Melba’s debts and expenses. This will also include selling her property, and transferring her property to the heirs. Generally, the executor must provide official notice to the heir under the will. The executor gives a copy of the 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 of all her property the chances are good. The attorney will represent the trustee of Aunt Melba’s trust. A trustee’s role is to manage the trust’s accounts and property, pay any expenses. This also includes distributing the money and property to the beneficiaries according to the trust’s instructions.

The court is not formally supervised a trustee. They can sell the property and pay debts without approval or notice to the beneficiary. The trustee may not be required to provide the list of assets. But, 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?

If you question the validity of the will or trust

If you are not sure if the will was done correctly, you should consider hiring an attorney.  You should consider getting an attorney to represent you in the legality of the will or trust.

Generally, a person must create the will intentionally to have a valid will.

A person wanted to write a will and leave instructions about how properties should be given when he dies. Also, The person must sign the will without the influence of others

If Aunt Melba is not able to understand her will, or if someone influenced her into signing a will. You may consider hiring an attorney to file an action in court to contest the validity of her will.

If there are no estate planning documents.

You believe you are a beneficiary but your loved one did not have a will. In that case, the court may need to be involved in determining who should inherit from your loved one.

Generally, the state law where your loved one lived or died will determine who and how much the person inherits.

Identifying who gets what becomes more complicated because the answer depends on the type of property the loved one owned.

If you are a close family of someone who died, you should contact an attorney to represent your interests. Without a trust, 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 an appointment by the court.

You could consider initiating the process yourself through your attorney. You may also want to have your attorney help you understand your rights. They can serve as your voice during the process if such a process has not been initiated.

If you have concerns about the executor’s or trustee’s actions or ability to fulfill the role

If you are concerned about the executor’s ability, you may consider hiring an attorney to represent you.

The serving trustee that is showing signs of medical concern is replaceable. If the trustee’s medical condition affect his or her performance, you should consider replace the trustee. You will have to request to the court to replace the executor.

Your attorney on behalf of you, will ask the court whether the executor is capable of his or her duties.

Similarly, if the executor was acting uncertain or unusual to the best interest of beneficiaries, your attorney can help you. The attorney could represent you in requesting a detailed list of actions that the executor did.

Your attorney can file an action on your behalf to the court. The court will require the executor to explain any questionable actions.

In either case, you can request someone if the court decides that the executor is not fit to serve.

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. Your attorney could file an action on your behalf for a formal accounting in court if you are still not satisfied.

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.

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.

We Are Here to Help

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 trust laws. The KC Estate Planner ready to assist you if you need professional advice or help knowing where to begin once you learn that you are a beneficiary.