I have been named as the Personal Representative/Executor/Trustee of an estate or trust. Now what?
Being named as the individual in charge of settling a loved one’s estate or trust can be a daunting task. It is important to realize that you are in a fiduciary position which means that you have personal liability for administering the estate or trust correctly. Whether it is a probate estate or a trust, the process is similar, and technical. It is important to remember that your job is to carry out the directions of the Will or Trust or to follow the statutory distributions if there is no Will or Trust. Any type of “understandings” or “side deals” that the decedent may have passed along to you are not within your right to follow. If you do not follow the proper procedures you may be liable to the heirs and beneficiaries. It is important to work with an attorney experienced in estate and trust administration so that they can develop a plan for you to follow in the process and to make sure you don’t expose yourself to unnecessary liability.
My Mom/Dad/Grandmother/Grandfather is not able to manage his/her own finances or make good decisions about their health care. How can I help them?
Watching a loved one decline physically or mentally is a heartbreaking situation. It is even more upsetting when you see that they are not managing their finances properly, making good health care decisions, or even worse, being taken advantage of by others. Compounding the problem is that many times your loved one doesn’t recognize their own deficiencies and does not want help. So what can you do?
First, if your loved one has already executed a Durable Power of Attorney, this document will give authority to an agent specified by them to manage their finances to the extent that assets are not in a trust. If assets are held in a trust and they are still the Trustee, it may be necessary to take steps for the Successor Trustee (designated in the Trust) to begin acting.
If your loved one has already executed a Patient Advocate Designation or Durable Power of Attorney for Health Care, the agent may be able to make health care decisions and placement decisions depending on the scope of the document and the capabilities of the patient.
If, however, there is no Durable Power of Attorney or Patient Advocate Designation in place, it may be time to petition the court to appoint a Guardian or Conservator. The Guardian will act as the health care and placement agent and the Conservator will act as the financial manager.
This can be a very sensitive situation for families. It is important to not only get good legal advice on the proper procedures to follow, but equally important to work with an attorney who understands the family dynamics and complexities of dealing with this type of work.
I don’t have a Will or Trust. Do I need one?
That depends. Having a Will allows you to determine who will settle your estate, who will raise your minor children and manage their finances for them, and how you want your assets to be distributed. Having a Trust allows you to establish a more sophisticated plan for asset management for your beneficiaries, including delaying distributions to young adults and can simplify the administration process in some ways. However, if you do not wish to have a Will or Trust prepared, the State of Michigan has a statutory framework in place which will dictate who gets what. As to who will have to settle the estate, raise your children and manage their money until they are 18, that will be left to the courts to decide when your various family members all claim that they are the best one for the job.
What will happen if I am in an accident or have a serious medical condition and can’t manage my finances or health care for a while?
If you plan ahead, before you are in such a position, you can execute a Durable Power of Attorney and designate a person to act as your agent during your incapacity. You can determine how broad or limited in scope you want the agent’s powers to be in the document itself. You would also want to execute a Patient Advocate Designation and designate someone to handle your health care decisions for you.
In the event you do not have these documents prepared prior to needing them, someone (a loved one or even Adult Protective Services) can petition the court to have a Guardian and Conservator appointed for you. The Guardian will handle your health care decisions and the Conservator will manage your finances for you. Of course, the Conservator will have to report all your finances to the court, which then becomes public record.
Mom and Dad had a Will and/or Trust in place when they died but I don’t think it properly reflects their wishes, or it’s not being administered properly. Is there anything I can do?
Yes, assuming you are an heir of the estate or beneficiary of the Trust. If you believe that the Will or Trust was made or changed while they were not capable of making such legal decisions, or if you think their decisions were the product of undue influence, you may challenge the documents. If you think the Personal Representative/Executor/Trustee is not administering the estate or Trust according to its terms, you may challenge the actions of the fiduciary and make certain requests for accountings or their removal.
These actions are commonly referred to as Probate Litigation issues. While there are many attorneys who do litigation in civil matters, there are much fewer attorneys who actually understand the intricacies of litigating Probate matters. There are also many attorneys who will prepare estate planning documents such as Wills and Trusts, but they do not handle any contested or challenged matters. This is when you need the experience and expertise of a Probate Litigator. Make sure to ask the attorney you are interviewing how much of their practice is Probate Litigation, what types of litigated matters have they handled, and in how many counties. It is also helpful to know if they do any appellate work in probate matters. If they are uncomfortable or evasive in their answers, you probably should continue searching for the right attorney.
I am trying to settle my Mom/Dad’s estate/trust and one of the heirs/beneficiaries just filed a “Petition” for something in the Probate Court. What should I do?
Run, don’t walk, to an experienced Probate Litigation attorney! As the Personal Representative/Trustee of the estate/Trust, you are in a fiduciary position to the heirs and beneficiaries and have personal liability. It is important to obtain sound legal advice to determine what the heirs or beneficiaries are looking for, whether they are entitled to it, whether you have or have not followed the proper procedures of administration, and if not, what can you do to rectify the situation.
How Much Will This Cost Me?
This is by far the first and most common question I am asked. And the most difficult to answer. Every lawyer’s answer to every question is “it depends.” It’s not that we don’t want to give you an answer, it’s that every situation is unique, with its own facts and circumstances. In addition, every lawyer will structure their billing in a slightly different way, so it’s hard to compare “apples to apples.”
But choosing a lawyer by price is a bad way to choose a lawyer anyway. Finding the right attorney is a combination of the right skills, the right areas of expertise, the right experience, and philosophy. The only way to really determine whether a particular lawyer is right for you is to meet with them and discuss your specific situation with them.
In short, I am required to charge a fee to meet with a potential client because it is then that I dispense legal advice, subject my firm to malpractice claims, and conflict my entire firm out of representing other related parties. However, in fairness to the client, a portion of that fee is applied towards a retainer or preparation of documents. We believe that our one-on-one, customized attention to each case, our experience, and our reputation, will result in delivering great value to our clients.
Don’t drive yourself crazy trying to figure out which attorney(s) are the cheapest. If you like what you see on our website, you will love what you find working with our firm.
Can’t find what you’re looking for? Still have more questions?