Imagine for a moment. Your Aunt Joanne is a multimillionaire businesswoman who lived in New York and ran two large corporations. She had several long-term relationships but never married. She never had children, though there is a rumor she adopted two young girls when she was in her thirties. Joanne has recently died. Joanne’s attorney informs you that you have been named as one of her beneficiaries. Your mom, Joanne, and Uncle Bill have used the same attorney to handle family legal matters for years. You are wondering whether you should hire an attorney to protect your interests in Joanne’s estate. Could you use Joanne’s attorney for protecting your interests as a beneficiary?
Whose best interests is the attorney representing?
You may have a similar question when you were purchasing a home. Is your real estate agent a seller’s agent or a buyer’s agent? If you and the seller shared an agent, the agent had a responsibility to stay neutral, but that may be hard to do, as the agent’s commission is frequently a percentage of the selling price. If the home price increases, the real estate agent’s commission increases. Many agents refuse to act as dual agents because it is hard to make both parties on opposite sides of a negotiation feel well-represented (Bartsch, 2019).
The same questions may come up when determining whether to use the same attorney. Does the attorney represent Joann, all three siblings, or everyone in the family? The answer may differ depending on Joann’s estate plan.
Executing a Last Will and Testament
What is the role of the executor?
If Joanne had a Will, Joanne’s attorney would represent the will’s executor (administrator). A will goes through a probate process because administering the will’s terms usually requires a probate judge’s supervision. The will’s executor handles
- paying all of Joanne’s debts and expenses
- notifying her beneficiaries
- selling her properties
- transferring her assets to the beneficiaries
The attorney representing the executor provided official notice to all beneficiaries by sending each a copy of the will and an inventory of all the money and property Joanne owned.
When should you hire an attorney?
- Do you question the validity of the will? For the will to be valid, Joanne must have had the ability to create a will intentionally. She was under no duress to write the will, and she knew she was providing instructions for how her money and property would be distributed when she died. If you believe Joanne was being influenced by someone else or suffered a medical condition that interfered with her ability to write and understand what she put in her will, then consider hiring an attorney to challenge the validity of the will.
- Do you have concerns about the executor’s ability to fulfill that role? Suppose you are concerned that a medical condition or another reason makes it impossible for the executor to fulfill their role. In that case, you can ask your attorney to file a request with the court to name a backup executor. If the executor’s actions are erratic or irrational, your attorney may document these actions to show they were not in the estate’s or the beneficiaries’ best interest. Your attorney could ask that the executor be required to explain their actions if your concerns are not resolved. If the court decides that the executor is not fit to fulfill their role, they may appoint a successor executor.
- Do you have concerns you are not being informed about the status and terms of the will? The court supervises the probate of a will. Your attorney can communicate with the executor and request an accounting of the property in the will and a list of steps taken thus far. If you or your attorney are not satisfied with the progress or the results, you may ask the attorney to file an action on your behalf for a formal accounting in court.
A Revocable Living Trust
How does a revocable living trust differ from a will?
Joanne valued her privacy and that of her family. She also wanted to ensure that her heirs would have their inheritance protected and tried to minimize expenses. Joanne put all her businesses, home, other property, life savings, and personal belongings in the trust.
Joanne’s attorney is representing the trustee of Joanne’s trust. The role of a trustee and executor of a will is similar. They both manage accounts and property, pay bills and expenses, and distribute money and property to the beneficiaries. The key difference is that the court does not supervise a trustee. The benefit is that this reduces court fees, protects privacy, keeps family business in the family, and reduces the time to distribute the beneficiaries’ inheritance. The drawback is that the trustee could sell the property and pay debts without as much formal approval or notice to the beneficiaries as would occur in probate court.
When should you hire an attorney?
- Do you question the validity of the trust? As with a will, if you feel Joanne was pressured when writing her trust instructions or had a medical condition that interfered with her ability to understand the instructions, consider hiring an attorney to contest the trust.
- Do you have concerns about the trustee’s ability to fulfill that role? Just like with a will, if you feel the trustee is mentally incapable of fulfilling their role or acting erratically, you may document your observations and then ask your attorney to file a request with the court to name a backup trustee.
- Do you have concerns you are not being informed about the status and terms of the trust? The court rarely supervises the trustee’s actions, which means they may not be obligated to communicate with the beneficiaries. Your attorney can communicate with the trustee and ask for information.
What happens if you don’t know if there were estate planning documents?
Imagine that Joanne did not write a will or put in place a revocable living trust. What happens next? Here, the court will need to determine who should inherit Joanne’s estate. This process is called a determination of heirship and will follow the state laws in which Joanne lived and died. This process can be very complicated, especially in states that differentiate between community and separate property.
Someone needs to initiate the process. You or your attorney could do so. You may even ask your attorney to request through the court that you be made the administrator of the estate.
Are there other reasons to hire an attorney for protecting your interests as a beneficiary?
In some estates, the division of property can be complicated. You may hire an attorney to explain the terms of a will or trust to you, what you can expect, the state laws, and property laws. An attorney can also help you understand your rights and responsibilities, no matter your role. You may be expected to sign legal receipts or waivers and need guidance on what to do. Before signing any waivers or accepting the accountings or inventories in a complicated estate, talk to your attorney to get a professional opinion.
As you can see, you would not be required to hire an attorney after being notified that you are one of Joanne’s beneficiaries, but her estate is likely to be complicated. There are many reasons it may be in your best interest to hire an attorney to ensure you understand the terms of a will or trust and that you can fully assert your rights as a beneficiary and have those rights protected.
We have a team of professionals who can provide professional advice whether you are a beneficiary or doing your own estate planning.
Bartsch, C. (2019). Can a Realtor Represent Both the Seller and Buyer in a Transaction? Retrieved from https://www.homelight.com/blog/can-realtor-represent-buyer-and-seller/