Estate PlanninG

6 Reasons You May Need to Hire an Attorney if Your Loved One Passes Away

Let’s set the scene: you just found out that your grandma, Evelyn, has passed away. In the midst of your grief and sadness, you receive a notice from the attorney handling Grandma Evelyn’s affairs that informs you that you’re a beneficiary. Your best friend tells you that you need to get an attorney.

What’s the right move? Will Grandma Evelyn’s attorney help you? After all, this attorney has been helping your family for years. Since they’re familiar with Evelyn 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 Grandma Evelyn 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 Grandma Evelyn’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 Grandma Evelyn’s will and an inventory (list) of money and property that she owned.

On the other hand, if Grandma Evelyn 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 Grandma Evelyn’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’s any concern about the validity of the will or trust, you should consider hiring an attorney. They’ll help you challenge the legality of the document.

Generally, in order for a will to be valid, a person must have had the ability to understand that they were intentionally creating a will or trust. In other words, they must have wanted to write a will and leave instructions for how their money and property should be given when they die. They also must have signed the will or trust without being influenced or under pressure from another person.

If there’s any chance Grandma Evelyn suffered from a medical condition that prevented her from being able to understand her will, or if you suspect there was somebody pressuring her, you may consider hiring an attorney to file an action in court to contest the validity of the will or trust.

  1. If there are no estate planning documents. Let’s pretend you believe you’re a beneficiary or are a close family member of someone who died, but your loved one didn’t 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 called 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. This gets even more complicated in some states where properties are categorized as community property and separate property, as identifying who gets what depends on what type of property the loved one owned.

If you’re a close family member of someone who died, you should reach out to an attorney. 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.

An attorney can help you initiate the process yourself, or simply help you understand your rights and serve as your voice.

  1. If you have concerns about the executor’s or trustee's actions or ability to fulfill the role. If there’s any concern about the ability of the executor or trustee to carry out their duties, you may consider hiring an attorney to represent you.

Here’s why: if the executor or the serving trustee is showing signs of deteriorating mental capacity or medical concerns that greatly impact their ability to perform their duties, it may be necessary to request that the court replace this person with a backup executor or trustee. Your attorney would ask the court to decide whether the acting executor or trustee is mentally capable or carrying out their legal duties, or if they should be replaced.

Similarly, if the executor or trustee was acting erratically or in a manner that wasn’t in the best interests of the estate or trust beneficiaries, your attorney could help you in requesting a detailed list of actions that the executor or trustee has taken.

If your concerns don’t get 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.

  1. 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’re a beneficiary and aren’t receiving communication from the named executor or trustee, your attorney can communicate on your behalf with that person in order to explain your concerns, request information, or ask for an informal accounting. An informal accounting would be a list of property and debts as well as 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’re still not satisfied, your attorney could file an action on your behalf for a formal accounting in court.

  1. If you need help understanding what you should receive under the will or trust. An attorney can help you understand what your gifts should be under the will or trust. That attorney can also explain the laws in the relevant state and the characteristics of the different types of property your loved one owned.

If some gifts are 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 make sense of what you’ll be getting under the will or trust before you waive your right to challenge the document.

  1. If you need assistance decoding a complex estate or trust. An attorney can help you understand your rights and responsibilities when it comes to a complex estate. 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 move forward with the probate of a will.

Before signing a waiver, it would be in your best interest to meet with an attorney before you give up your rights. Also, executors and trustees may provide highly 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.

Don’t just assume that these documents are correct. Speak to an attorney and get a professional opinion.

If you’re a beneficiary under someone’s will or trust, it doesn’t necessarily mean you have to hire an attorney to represent you. However, there are several circumstances in which you might want the professional advice of a probate attorney. They can help you understand and assert or protect your rights as a beneficiary.

Don’t underestimate the importance of getting involved, asking questions, and understanding the legal process. Most states and local governments have online resources where you can learn more about your state’s will and trusts laws.

At Santaella Legal Group, our team of legal professionals is ready to assist you if you need professional advice or help knowing where to begin when you learn you’re a beneficiary. Give us a call today at (925) 831-4840.