RIGHTS OF A BENEFICIARY UNDER A WILL

If you are named as a beneficiary under a valid Last Will and Testament you have legal rights that you need to know about. Some of these rights are “time sensitive”, meaning you need to act and enforce those rights within a certain amount of time from the decedent’s death. The purpose of this Article is to spell out some of those rights. The more you are informed about these rights the more likely you will want to seek competent legal advice from an experienced Probate Lawyer. If you are a beneficiary under the Will and you are also either a child of the decedent or a spouse of the decedent, you will want to read the companion Articles under the Jet Probate Website dealing with “Spousal Rights” and “Children Rights”.

One of your most basic rights, and sometimes one of the most difficult rights to enforce, is your right to have a copy of the Will. If a Probate is filed by the named Executor, and if you were named as a beneficiary under the Will that was filed, then you will be given a copy of the Will. If you are not a named beneficiary under the Will, then you are not entitled to a copy of the Will. The exception to this rule is whether or not you are a child or spouse of the decedent. In those cases, even if you are not named as a beneficiary, you must be given a copy of the Will if that Will is filed with the Probate Court as part of a valid Probate proceeding. This will give you plenty of opportunity to challenge the validity of the Will if you have the legal grounds to do so. To better understand your rights as a child or spouse that wasn’t named in the Will, read more on this website of the valid legal grounds to challenge the validity of the Will.

The problem arises when you don’t know whether you are a named beneficiary under the Will, and you may not even know if a Will exists (if your parents are still alive, this is why you should ask them to give you a copy of their Will prior to their death). Our suggestion at Jet Probate is to hire a Probate Lawyer to write a “Demand Letter” to the person you believe would have custody of the Will and “demand” that you receive a copy. This will at least force them to tell you that either they don’t know of any Will, or that they have the Will, but you were not named in it. If they tell you that they are not aware of any Will, then there really isn’t much you can do. In today’s world, Wills are not filed with the Probate Court, nor are they recorded. It becomes next to impossible to try to find a Will, especially if the person who has custody of it has a reason that they don’t want the Will to be known.

If you are a named beneficiary of the Will, then you will be given notice when a Probate has been filed with the Probate Court. This “notice” will start the Statute of Limitations as to the timing in which you must object to the validity of the Will if you have valid legal grounds to do so. That time period will vary from state to state but may be as short as 60 days. This is why you need to seek the competent advice of a Jet Probate Lawyer. You may also have the right to object to the appointment of the Executor (“Personal Representative”) if you have good reason to do so. For example, if you know that the named Personal Representative or Executor has a problem with gambling, or alcohol or has been convicted of a crime, the Probate Court will give you a copy of the Will and the application for the Probate process. It will not enforce your rights. You must hire a lawyer to enforce your rights.

After the Will has been filed with the Probate Court, you will also have the right to an “Inventory” of the Estate Assets. This means that you will be given a list of all the known assets of the estate and an estimate of their value. Each state will differ as to the timing of the receipt of this Inventory, but usually it is within 90 days of the appointment of the Executor by the Probate Court. The Inventory you receive is a “Preliminary Inventory” in that all of the assets may not be known by this time. That is part of the Probate process to discover and protect all assets of the estate. Many Executors will not give you an Inventory in a timely manner. Once again, the Probate Court will not enforce those rights. You must hire a lawyer to enforce those rights.

The Personal Representative or Executor has a “duty to act reasonably, promptly, and act fair to all Beneficiaries”. Once again, the Probate Court will not enforce those rights. You must hire a lawyer to enforce those rights. We see a lot of issues surrounding the house that is in Probate. Sometimes a family member is living in the house and the Executor or Personal Representative does not want to move promptly to sell the house. Also, the Personal Representative or Executor fails to charge rent to the family member that is living in the home. Or sometimes the Personal Representative or Executor wants to sell the home too quickly for less than fair market value. Or sometimes they act too slowly, and the value of the house goes down. Once again, the Probate Court is not going to intervene in these matters unless a beneficiary files some sort of Petition or Grievance with the Court.

The Personal Representative has a duty of fair dealing and the duty to avoid conflicts of interest. A breach of these duties could occur, for example, if the Personal Representative sells the house to himself or herself. This is a clear breach of fiduciary duty. But, once again, it is up to you as a beneficiary to enforce these duties. Many times, these transactions are not brought to the Court’s attention, unless you do so as a beneficiary.

Other actions of the Personal Representative that you may object to would be:

1. The compensation taken by the Personal Representative for handling the Probate.
2. The manner in which the assets were divided and whether or not they were in accordance with the Will.
3. The length of time in which the Probate is taking.
4. Conflicts of Interests.
5. Whether or not the Estate used reasonable diligence to try to ascertain all of the assets.
6. Whether or not the assets were properly protected and insured by the Estate.

When the Estate is finally ready to close out, then you are now entitled to a full inventory of all assets of the Estate and a full accounting of the actions of the Personal Representative. You will have the right to know what the income was of the Estate, and what the expenses were. You will be entitled to know what compensation the Personal Representative took, and also the amount that was paid to the lawyer that represented the Estate. But, once again, these rights are not automatically enforced by the Probate Court. You have to pursue those rights by hiring a Probate Lawyer.

And last, you may be asked to sign a Waiver presented to you by the Personal Representative before they are willing to distribute assets to you. Often this Waiver will have two negative consequences to you and you should not sign unless you fully understand what you are “waiving”. The first thing you might be “waiving” is the right to have a full and accurate Accounting of all of the acts of the Estate and the Personal Representative. And the second thing you might be “waiving” is actually a “release of liability”. Under the “release”, you are saying that you agree that the Personal Representative fulfilled all of his duties to the Estate, and you are “releasing him or her of any potential liability for not acting fairly or promptly”. If you don’t understand the “Release and Waiver” then once again, you should hire a Probate Lawyer to properly explain it to you and help you find out if everything was handled properly. Once you sign this “Release and Waiver”, then the Probate will be “Closed”, and you will not have the ability to make any objections in the future.

The two big take aways from this Article are:

1. You have many rights as a beneficiary of the Estate.
2. Most of these rights are not enforced by the Probate Court. They must be enforced by you. That is why we often say that the Beneficiaries of the Estate are the true “watchdogs” of the Estate. They are the ones that make sure the Personal Representative or Executor fulfilled all of those duties and protected your rights.

If you have any questions regarding these rights or of the duties of the Personal Representative or Executor, then call us or email us at Jet Probate. Many times, we will take your case on an “hourly rate basis”. If you don’t have the cash to pay us, then perhaps it could be financed by one of our Finance Partners. In some cases, we may be willing to take your case on a “contingency fee basis”. This means that you don’t owe us anything unless we can win your case and collect assets for you. Don’t procrastinate, or these rights may be automatically lost.