You need to hire your own probate
Probate is the legal process whereby a will is "proved" in a court and accepted as a valid public document that is the true last testament of the deceased. The granting of probate is the first step in the legal process of administering the estate of a deceased person, resolving all claims and distributing the deceased person's property under a will.
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Notifying Your Creditors. Your personal representative must identify your creditors and pay off your outstanding debts. This typically includes running newspaper notices to alert all companies and individuals to whom you might owe money that you have died. They can then make claims to the estate for what they're owed.
· In that case, a good Personal Representative will enlist the help of professionals to organize the estate’s finances. 6. You Will Need Money. As Personal Representative, you will likely incur expenses during the administration of an estate, such as travel, mileage, postage, etc. Fortunately, you are entitled to be compensated for out-of ...
· June 23rd, 2017. Serving as the personal representative (also called the executor or administrator) of an estate is a great responsibility. You're responsible for identifying, inventorying, securing, and distributing a deceased person's assets, not to mention paying their creditors and the estate's income taxes.
· In general, a personal representative’s duties are to probate the decedent’s will; specifically to inventory and determine the value of the assets of the decedent’s estate, take possession of those assets, determine the liabilities of the estate and make arrangements when necessary for payment thereof, and administer and distribute the assets of the decedent’s …
Personal Representatives are required to keep very good records and provide an accounting to the probate court for all expenditures. You will need to keep meticulous records of financial transactions, as well as communications with attorneys, accountants, bankers, and other contacts.
As Personal Representative, you will likely incur expenses during the administration of an estate, such as travel, mileage, postage, etc. Fortunately, you are entitled to be compensated for out-of-pocket costs. You are also entitled to compensation in the form of a Personal Representative’s fee, typically 2% of the value of the estate.
It will take several months to administer a basic estate, and much longer for complicated estates. In Wisconsin, there is a three month period after the estate has been opened, during which creditors may file claims in the estate.
How assets are titled matters in determining what procedures will be necessary to handle the decedent’s affairs. If you don’t have very much information regarding assets and expenses, an attorney will not be able to tell you which procedures can be used until you gather more information.
Being asked to wind up the affairs of a deceased loved one may feel like an honor, but the duties of a Personal Representative, or Executor, as the position is sometimes called, can also be complicated. If you have been named as Personal Representative in the Last Will & Testament of someone who has died, here are some things to keep in mind:
Not all estates are subject to probate. If the deceased named direct beneficiaries on his or her life insurance, bank accounts or retirement accounts, for example, these assets will not need to go through the probate process.
If, as is typical, the personal representative is a family member of the deceased and heirs, a breach of duty could lead to irreparably broken family relationships. The consequences for mishandling of estate assets or other breach of duty is one of the most important reasons personal representatives should have the assistance ...
Serving as the personal representative (also called the executor or administrator ) of an estate is a great responsibility. You're responsible for identifying, inventorying, securing, and distributing a deceased person's assets, not to mention paying their creditors and the estate's income taxes. For someone who's never served in this capacity before, the responsibility can be overwhelming, especially if the estate contains complex assets like a business or rental property out of state. It can be easy to make a mistake, which is why Ohio law authorizes a personal representative to hire a probate attorney to assist in the administration, and for the attorney's fees to be paid out of estate funds, not the personal representative's pocket.
If an executor breaches their fiduciary duty, there are a number of consequences. They may be removed from their position by the probate court. If the estate includes personal property that is required to be sold, and the personal representative fails to do so, there may be a steep financial penalty. If the personal representative keeps, consumes, or disposes of the asset, he or she may be held liable for double the appraised value of that personal property. Heirs or beneficiaries may also file a civil suit against an executor for breach of duty.
This fiduciary duty means that the personal representative is bound to act in the best interests of the estate, even if those run counter to the personal representative's own interests. Common breaches of the personal representative's duty include: Using estate funds for the personal representative's own benefit.
Using estate funds for the personal representative's own benefit. Committing fraud by concealing assets or some other act or omission. Misappropriation of assets. Negligent or reckless management of estate assets. Failing to properly account for estate assets (typically gross negligence, not minor errors)
On occasion, however, a personal representative may act carelessly or even unethically, breaching the duty they've undertaken to faithfully execute. What recourse do heirs and creditors have when a personal representative breaches their duty?
It can be easy to make a mistake, which is why Ohio law authorizes a personal representative to hire a probate attorney to assist in the administration, and for the attorney's fees to be paid out of estate funds, not the personal representative's pocket.
Duty to account: provide regular estate accountings, which includes explaining funds paid out of estate accounts for expenses.
To be clear, this question is specifically about whether a lawyer owes the heirs of a probate estate a fiduciary duty, and not whether a lawyer owes a fiduciary duty in other contexts, such as to the beneficiaries of a trust when hired by a trustee, or a ward when hired by a guardian or conservator. The answer varies depending on each different circumstance.
Turning back to the question, whether the probate attorney owes a fiduciary duty the heirs of the estate depends on the state in which the estate is being probated. Only a few states require the lawyer to meet the same fiduciary duty to the estate heirs as the Personal Representative . These states believe that since the Personal Representative owes a fiduciary duty to the heirs and the lawyer owes a fiduciary duty to the Personal Representative, the duty flows from the Personal Representative to the lawyer.
Most states, (including Maryland and the District of Columbia) however, take the position that the probate lawyer does not owe a fiduciary duty to the estate heirs. These states view the fiduciary duty owed by the Personal Representative to the heirs as unique from the fiduciary duty owed by the lawyer to the Personal Representative. Also, these states want to maintain the Personal Representative’s ability to have protected communication with the attorney.
The plain language of this court rule is clear that an attorney appearing in the probate court on behalf a fiduciary represents the fiduciary, rather than the estate.
On January 19, 2017, the Court of Appeals held in the case titled Estate of Tyler Jacob Maki that the attorney hired by a fiduciary represents only the fiduciary and not the entire estate. Specifically, the Court held that when an attorney enters into an attorney-client relationship with a fiduciary, it does not have an attorney-client relationship ...
The Court went on to rule, “Therefore, we conclude that the plain language of the statute establishes that an attorney hired by a conservator represents the conservator, and the attorney does not have an attorney-client relationship with the estate.”
As personal representative, you may be acting on behalf of the estate of a parent or spouse who chose you to do so, but you are acting only because the probate court has granted you authority. You are subject to the jurisdiction of the probate court, which means the court has power to order you to do something.
Part of the reason for the probate process is to allow the personal representative to notify potential creditors of the deceased and give them time to come forward and make their claims against the estate. If you distribute any assets before the process for receiving creditor claims is completed, you may find that there is not enough money left in the estate to pay all legitimate claims. If that's the case, you may be exposed to personal liability for distributing the assets prematurely.
Estate administration is about distributing assets to heirs and beneficiaries , yes. But that's the last step in the process, and must not be carried out until ALL other business is concluded: the period for creditors to make claims, payment of taxes, and payment of fees for services to the estate, and a final accounting to the probate court. If you distribute all of the estate's funds to heirs and beneficiaries, then discover that you are entitled to reimbursement or there is an outstanding unpaid bill for services to the estate, you will find it very difficult to reclaim the money from heirs who have received, and possibly spent, their distribution.
This is usually routine, but can be touchy, say, if Uncle Joe had a child out of wedlock who was never publicly acknowledged but whom everyone knew about. Don't be tempted to do an end run around the law. Notify everyone who has a legal right to notice.
If you distribute any assets before the process for receiving creditor claims is completed, you may find that there is not enough money left in the estate to pay all legitimate claims. If that's the case, you may be exposed to personal liability for distributing the assets prematurely.
Anyone who would be entitled to inherit from the deceased if he or she died without a will is entitled to notice of the probate of an estate. Heirs may choose to waive their right to notice, but the personal representative is obligated to go through the process of giving notice or securing a waiver. This is usually routine, but can be touchy, say, if Uncle Joe had a child out of wedlock who was never publicly acknowledged but whom everyone knew about. Don't be tempted to do an end run around the law. Notify everyone who has a legal right to notice.
If you've been appointed or named as personal representative of a deceased person's estate in Ohio, you already know you have a lengthy "to-do" list. However, you may not have thought much about what NOT to do as the personal representative of the estate. Here are some rules for how to avoid trouble when you're administering a loved one's estate.
While I think it is always better to keep the lines of communication open, and to cooperate with all of the interested parties, the lawyer technically represents the PR and not the beneficiaries. Of course, the PR is required to act in the best interests of the beneficiaries, so the lawyer has an interest in making sure this happens.
In addition to the good advice my colleagues have provided, I would add that since probate is an open court process you can go to the court and look at everything that has been filed. Many courts have electronic records, some accessible via the internet. Depending on what information you seek, that may answer your question.
You need to hire your own probate lawyer to see what is happening with the estate. The attorney for the personal representative only represents the estate and not any of the heirs. If neither the attorney nor the personal representative will return your calls, your best remedy is to have your own representation...
The probate attorney only has as a client the personal representative. The probate attorney has certain ethical duties towards the other heirs, but these do not include talking to them or giving them advise. There are at least three good reasons why the lawyer for the personal representative will not talk to other heirs:...
When a beneficiary calls and a lawyer chooses to engage in a conversation, the lawyer must walk a careful line between providing general information about the estate (which is okay) and providing legal advice to a beneficiary (which is not okay). Another consideration at play is the attorneys’ fees.
Although it seems elemental, the first step for any lawyer in any case is to identify the client. In a probate matter, the estate’s attorney generally represents the Personal Representative, in his or her fiduciary capacity. What does that really mean?
So what’s a poor confused beneficiary to do? If you are an estate beneficiary, and you are confused by what’s going on or suspect foul play, the best thing you can do is to hire your own attorney. Your attorney can explain the probate process to you, obtain information from the estate’s attorney in an efficient way and, if necessary, file reasonable and legally sound pleadings on your behalf. Ultimately, this approach will not only make the estate lawyer’s job easier – it may also save the beneficiaries a considerable sum of money at the end of the day.
Common problems include pleadings that literally make no sense to anyone but the beneficiary, pleadings that fail to cite any law or cite the law incorrectly, and pleadings that are not properly filed and served upon other parties pursuant to the court rules.
So that beneficiary, and any other beneficiaries who will receive percentage distributions, will ultimately receive less money. Since, again, the lawyer represents a fiduciary and must seek to act in the estate’s best interest, often it is in the estate’s best interest if the lawyer does not communicate excessively with the beneficiaries.
A lawyer’s time is considered an expense involving estate administration. In Washington, these expenses are prioritized ahead of any estate distributions to the beneficiaries.
No one, unless a beneficiary decides to obtain counsel. Unfortunately, some beneficiaries think the estate’s lawyer represents them too. For free. As a result, they call the lawyer’s office. And call. And call again.