Category Archives: When Do You Need A Lawyer?

  • 23
    Sep 15
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Removing a Guardian with Mental Health Powers

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Removing a Guardian with Mental Health PowersIt can be emotionally draining for you when your loved one’s personal rights have been limited. When age, mental or physical illness or other situations affect the ability of the loved one to maintain independence, important decisions (such as choice in doctors, healthcare treatments, where to live, whether he or she can drive a car and what family and friends can visit) need to be made by someone else.

That’s where guardianship can help. To review, a guardian is a person granted the legal authority and responsibility to help another person make decisions that affect his or her wellbeing. A guardian with mental health powers has authority to make decisions specific to mental health care, including whether the ward needs inpatient hospitalization.

Unfortunately, a guardian may not always do a good job fulfilling the delicate and sometimes confusing responsibilities of the position, and may be putting the protected person at risk.

If you find yourself in a situation where a guardian is not acting in the best interest of your loved one, you have the right to petition the court to remove the current guardian and to appoint a replacement.

If this happens, you will need to supply the court with a professional evaluation of the protected person. The quickest way to work with HIPAA and other confidentiality laws (HIPAA refers to The Health Insurance Portability and Accountability Act of 1996) is to seek assistance from an experienced probate attorney to file a motion with the court that will require the ward to receive an additional psychiatric examination.

This ruling process typically takes about two or three months. If the situation is an emergency, your attorney can help you file for emergency status to receive a ruling sooner.

The court will make a ruling for removing a guardian and appointing a successor based on the best interest of the ward. This means that the court doesn’t necessarily need to find that the current guardian has acted inappropriately. The court is interested in what is best for the protected person and will support replacing a current guardian with a successor who is better qualified.

The most common mistake that guardians make is not disclosing information to the family and lawyers. If you’re acting as a guardian with mental health powers, make sure you keep lines of communication open between your ward’s family and attorney. Maintain copies of all letters and reports that are sent to involved parties. Preserve meticulous records of expenses you’ve made for which you’ve used the ward’s resources.

Whether you’re a guardian in need of help navigating the responsibilities of the position, or a family member concerned about the care your loved one is receiving, don’t be afraid to talk to an attorney. Attorneys’ experience in navigating the legal system can help you make sure your loved one receives proper care and give you peace of mind.

  • 09
    Sep 15
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How to Remove a Guardian

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How to Remove a GuardianIt’s hard watching loved ones age. Their loss of independence can come as quite a blow for their families, and such challenges can become even more difficult if the guardian trusted with the care of a loved one is not fulfilling the responsibilities of the position.

A guardian is a person appointed by the court to make decisions about a protected person’s well-being (the “ward”).

A few of the responsibilities of a guardian, include ensuring safe and clean living arrangements, seeing to appropriate medical care (including compliance with taking of necessary medications)and determining whether or when family members or other people should be able to visit the ward.

If you suspect or see that something isn’t right with the guardianship, you should find an experienced probate litigation attorney to help you file a petition with the court or to contact Adult Protective Services (APS). Both of these bodies take the fulfillment of a guardian’s responsibilities very seriously.

Sometimes, a guardian might be doing an adequate job, but the court will remove a guardian and appoint a successor if it deems that another person is better able to act in the best interest of the ward.

Let’s look at an example where the need for a new guardian is not due to negligence but to circumstance. Sarah, a 75-year-old widow suffering from advanced dementia, is living in a nursing home. She needs a guardian to help with daily living and healthcare. Her son, who was originally appointed as her guardian, lives an hour away from his mother and has his own a busy work and family life. He’s finding it more and more difficult to remain as his mother’s guardian while also seeing to the care of his own family.

Sarah’s sister Beth, who is of sound mind and health, is a registered nurse who happens to live just 15 minutes away from Sarah’s nursing home. Beth visits Sarah daily and is able to be there quickly in an emergency. She has more time to devote to the care of her sister than does Sarah’s son.

It would be in the best interest of the court that Sarah’s son be removed as her guardian, though he has not abused his position, and to appoint Beth as the new guardian.  Sometimes another party is better able to care for the ward.

If a guardian is doing a poor job (whether intentionally or unintentionally), in most cases the court will simply to remove a guardian and appoint a successor. If the case is a more amicable transfer of responsibilities as in the example of Sarah and her son, the court will help with the legalities to relieve the original guardian of the responsibilities and transfer the legal authority to the new guardian.

If you’re serving as a guardian, focus on maintaining open lines of communication with your ward’s family and lawyer. Keep detailed records of both letters and reports of care and receipts for expenses paid for with the ward’s resources.

If you have questions about the process of removing a guardian, please contact our office. We’d love to help relieve you and your family of the burden of navigating the legal system as you seek care for your loved one.

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  • 02
    Sep 15
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Recovering from Trustee Misconduct

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Recovering from Trustee MisconductBeneficiaries of a trust depend greatly on the trustee to act in the best interest of the beneficiaries and the trust.

Unfortunately, trustees don’t always live up to the duty and responsibility of their position. Beyond creating headaches for family members and other beneficiaries, such misconduct can rob them of their inheritance.

In previous posts we covered the actions that can led to the removal of a trustee [link to post on what qualifies trustee for removal] and how to petition the court to remove the trustee and appoint a successor.

After those important steps, how do you go get back the stolen or misused money? It all depends on whether you are able to trace where the money was sent, if it was spent or if it still exists in some form. Let’s look at an example:

If a trustee used money from the trust to buy a new house, and if that house has not been sold or transferred to someone else, you can get a court order to freeze the property and eventually have it transferred back to the trust.

If the money is gone, there are three ways to recover funds:

  1. Surcharge. This applies if the trustee is also a beneficiary of the trust. In this situation, the former trustee’s inheritance from the estate can be reduced by the amount of any judgment the court passes against him or her. To have a surcharge ordered on a former trustee, you must file what’s known as a “Petition for Surcharge” with the probate court.
  2. Seize assets. If you’re able to trace the trustee’s spending to existing assets (cars, jewelry or other property), or if you’re able to show bank statements showing cash the trustee’s withdrawals from estate funds at ATM machines, the court can place a judgment against the trustee, making it more likely that you will get the money back. If the trustee has spent money on intangible purchases such as vacations, it will be much harder to get the money back.
  3. Personal refund. If the trustee has other personal assets (such as a house or bank accounts), the court can order the former trustee to turn over those assets to compensate for the value taken from the trust.

The process of getting the money returned can be lengthy. It can take from three to six months or more to settle a case recovering losses. The court process involves gathering evidence, and filing a petition with the probate court (this is all part of the steps necessary to remove a trustee).

After the court determines the amount of damages caused by the former trustee, the new trustee or other beneficiaries can then request the court to make further orders. To give an example, let’s say that a former trustee, Roger, owned a house, which used to be owned by the trust. After Roger has been removed from the position of trustee, the court can order that the house belong again to the trust. An attorney for the trust can then get a certified copy of the order and record the ownership of the property with the county recorder in the county where the property is located.

If you’re dealing with a trustee who is mishandling a trust, don’t wait to seek help. An experienced probate litigation attorney can walk you through the tricky and complicated petitioning process. It’s important to have someone knowledgeable on your side who knows the law and the court system.

Your attorney should work closely with you and the court to help you recover lost funds that are justly yours. The probate courts are there to help you and your family. Remember to act quickly and seek the assistance of an attorney. This will increase the likelihood that you will recover your inheritance.

Have any questions about recovering from trustee misconduct? Give us a call. We’d love to help.

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  • 26
    Aug 15
  • 4

How to Petition to Remove a Trustee

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How to Petition to Remove a TrusteeLGIn a previous post, we covered the things trustees do that can lead to their being removed from that position. After you’ve identified where a trustee has abused this position of trust, and as you seek to have the offending trustee removed, the next step is to petition the court for that removal, and to appoint a successor.

It’s important that you work with an experienced probate litigation attorney on the petition process. This area of law is complex (even for lawyers). If you are unfamiliar with probate litigation, you risk increased delays and costs if things aren’t filed or presented correctly.

A trustee can be removed either by the terms of the trust or by court order. If you need to remove a trustee, the first thing is to contact a probate and trust litigation attorney who can help you put together a plan for removing the trustee.

If the trustee can’t be removed under the terms of the trust, then this will have to be done by going to court. The petition to the court should include specific details explaining why the trustee should be removed. If possible, include evidence to support your case (usually documentation such as copies of checks made out to the trustee or other evidence of the misuse of the trust’s funds or assets).

Your attorney will review the case to determine if your situation qualifies as an emergency (this can speed up the process in cases where the trustee is spending money or otherwise reducing the value of the trust).

Here’s an example of one such emergency case:

One family had a large amount of gold bullion owned by the trust. The bullion was kept in a safe in the home of the family member who was managing the trust.  Other family members noticed that the trustee had bought several new cars and expensive jewelry for his wife. The family suspected the trustee of using the bullion to fund these extravagant personal purchases.

After reviewing the case and gathering evidence that showed exactly those things, I helped the family petition for emergency status to remove the trustee. We were able to get an immediate court order freezing the assets and requiring that the remaining gold bullion be transferred to a secure storage facility.

Although you need to gather evidence of wrongdoing once you notice something wrong, the funds may not be returned. It is extremely difficult to recover money once it’s been spent. Waiting and hoping things work out rarely works out well. It’s better to take immediate action if you think a trustee is acting improperly.

Don’t be afraid to consult an attorney. Look for one who will work to protect the value of the trust while exploring ways to resolve disputes.

If you have any questions about removing a trustee or need help protecting your inheritance from an ineffective trustee, comment below or contact our office.

We’d love to help.

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  • 19
    Aug 15
  • 5

How to Remove a Trustee

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How to Remove a TrusteeNot everyone works out. And you have the right, as a beneficiary of a trust, to petition to remove the trustee of the estate if he or she proves to be incompetent, hostile, dishonest or otherwise unable to fulfill the responsibilities of administering the trust.

Here’s a quick definition of a trustee and a summary of the duties of the position.

A trustee can be a person (or a trust company) who has legal title to property, who holds that property for the benefit of another and who has assumed a legal duty (also called a fiduciary duty) to act in the best interests of the beneficiaries of the trust. As you can imagine, things can go awry.

Here’s an all too-frequent scenario from a recent case:

In a case involving a prominent Phoenix family that operated multiple businesses owned by their trust, the father had passed away a number of years earlier. The mother continued running the businesses, gradually turning over control to her adult children. One of the sons took control of the trust after the mother developed dementia.

The son used the money from the trust to enhance properties he would ultimately inherit. He also bought himself a new car and started taking lavish cruises and vacations.

My clients – the siblings of this trustee – turned to me for help. First they obtained evidence of wrongdoing. In this case, they were able to get copies of checks written from the trust directly to the trustee. This gave us enough to petition the court and get the son removed as trustee and replaced with a private fiduciary.

Trusts can be set up to allow for safeguards in case of wrongdoing. That is, they contain trigger points that can lead to the removal of a trustee.

For trusts that don’t specify a mechanism to remove a trustee, the court recognizes other reasons. Here are three:

  1. If the trustee has committed a breach of the fiduciary duties of care over the assets or loyalty to the beneficiaries. Examples include failing to pay taxes, stealing assets, and not following the specifications of the trust.
  2. If the trustee is unfit, unwilling or persistently fails to act in the best interest of the beneficiaries and the trust, the court can remove the trustee.
  3. In come cases, the circumstances surrounding the trust can change significantly or all qualified beneficiaries can request the removal of the trustee. The court can review the case and remove the trustee if it deems this for the best interest of the beneficiaries, as long as this isn’t inconsistent with the original specifications and intent of the trust.

If you are the beneficiary of a trust, it’s important to know what to do if the assets are being mismanaged. Trusts are normally very private affairs. In addition, trusts, being civil matters, are outside the jurisdiction of the police. There’s typically no court supervision and no government regulation to make sure that the trust is being run properly. It’s up to you and your attorney to pay attention to how a trust is being managed.

You need to take immediate action if you believe money is being misused. Proactive action increases your ability to protect your inheritance. Contact an experienced probate attorney at the first indication that a trustee is unethical or irresponsible with trust assets.

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  • 12
    Aug 15
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Removing a Personal Representative: How to Appoint a Successor

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Removing a Personal Representative How to Appoint a SuccessorIn the last few posts, we’ve looked at the first two steps in removing an ineffective personal representative: gathering evidence and petitioning the court. Once these steps are completed, you will need to appoint a successor. You’ll want to be particularly careful in choosing a qualified replacement after going through the effort to remove an ineffective personal representative.

If you think you can do a better job yourself than the person who had been personal representative, think twice. Before nominating yourself for the position, you should understand the responsibilities and duties of a personal representative. While you may be qualified to fulfill the role, it may be more than you really want to deal with.

Serving as a personal representative in an estate is time-consuming and requires great attention to detail. You will need to work closely with both your probate attorney and a CPA to make sure that everything is done properly. This includes the inventory of the estate, detailed recordkeeping, annual accountings of the estate, and other details that you might not have considered.

Here are a few criteria to consider when deciding whom to appoint as personal representative:

• A personal representative must be bondable. This means the person can be insured against fraudulent acts. Most states require this measure to protect the beneficiaries of the estate. The size of the personal representative bond must equal the amount of the estate’s estimated value. (For instance, you would need to have a net worth of $5 million in order to be bondable to administer a $5 million estate.)

• A personal representative must have good business sense. Managing an estate requires a lot of the same skills needed to run a business. It’s a big responsibility. Personal representatives are held to higher standards in managing the estate than they would be in their own personal affairs. The courts take this responsibility very seriously.

• A personal representative must be reliable and of good character. Choosing a personal representative who suffers from drug or alcohol addiction is an obvious bad move. And of course choose someone who does not have a criminal record.

The replacement personal representative is often appointed in the same petition that removed the original personal representative. You will work closely with your probate litigation attorney throughout the petition process.

A hearing will be scheduled after the petition is filed with the court. Depending on the case, the petition process can require several hearings that will eventually lead to the trial. (Actually, in probate court, the trial is called an evidentiary hearing.)

Unfortunately, the process of appointing a new representative is rarely quick. In uncontested cases with ample evidence, the case can be resolved within a few weeks. However, it usually takes several months to resolve the issue in contested cases.

Petitioning to replace a personal representative can be an emotional and overwhelming task. The guidance and assistance of a lawyer familiar with probate litigation can help make the process less challenging (and less lengthy). Look for a skilled litigation attorney to be your advocate in protecting your inheritance, and to make a difficult time easier for you and your family.

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  • 05
    Aug 15
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Petitioning to Remove a Personal Representative

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Petitioning to Remove a Personal RepresentativeIn the previous post we covered how to gather evidence to remove a personal representative. Once you have the necessary documentation as evidence, you can petition the court to remove the personal representative and appoint a successor.

The first step in petitioning the courts is to work with your probate litigation attorney to put together a formal Petition for Removal of Personal Representative and Appointment of Successor Personal Representative.

The Petition needs to include specific details that will be used as evidence to justify the removal of the personal representative. The more evidence and documentation that you can provide to the judge, the better your case. (Documentation should clearly show mismanagement of the estate, such as copies of checks drawn on the estate written to the personal representative, indicating that the representative is using estate money for personal gain.)

Once you have compiled the initial paperwork, the next step is to discuss with your attorney how quickly you should act to remove the representative. Discuss with your attorney if you can petition the court for emergency relief, if you feel this is necessary. The courts will work with you if you can prove that there’s an urgent need to replace an ineffective (or dishonest) personal representative. Probate judges and commissioners are both extremely busy and also extremely reluctant to take immediate action to remove a personal representative. The process of removing a personal representative normally takes months.

However, there are things you can do in the meanwhile. You can get a Temporary Restraining Order preventing the personal representative (or others) from taking action detrimental to the estate. You can request an Expedited Order for Formal Administration, meaning that the Personal Representative will need to get the court’s approval before taking any future action.

If the court approves the emergency status here, the court will take action quicker than it would otherwise. In most cases, there will still need to be at least one hearing. In any event, your lawyer can help you in arranging this.

If your case is not urgent, it will likely take the court anywhere from a few weeks to a couple of months before it intervenes. Everyone involved in the estate will need to be notified of this process. (Again, remember that there are often steps that can be taken to protect the estate in the meanwhile.)

There is normally more than one hearing. The first one, known as a “return hearing,” determines whether anyone objects to your petition. If that happens, then the court will require an additional hearing, or hearings, to sort out the situation.

Because each case is different, there’s no set standard for the amount of time or number of hearings a case will take to be settled. On average, you can expect the process of getting a court order to remove a personal representative to take between three to six months. In certain situations, such as where you are able to provide evidence that the personal representative is stealing assets or jeopardizing the value of the estate, the court might take more immediate action.

It’s important to keep an eye on the progress of the case, especially if you’re expecting an inheritance.

Be proactive. Seek the help of an experienced probate attorney if you suspect things related to the estate aren’t being handled correctly. Waiting to take action can jeopardize the estate and your loved one’s legacy. (Once money is spent or things have been stolen, it’s usually pretty hard to get it back.)

If you need help petitioning to remove an ineffective personal representative or trustee, please contact our office.

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  • 22
    Jul 15
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3 Ways to Reduce the Stress of a Conservatorship

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3 Ways to Reduce the Stress of a ConservatorshipThe illness, incapacity or death of a loved one is certainly an emotional blow to a family. Additional stress can come from disputes regarding the conservatorship of loved ones – especially when things don’t go smoothly.

A conservatorship deals with money, which can be stressful on its own. A conservator has many responsibilities in the position. In addition to managing the incapacitated person’s affairs, the conservator is responsible for keeping detailed accounting records and for providing annual reports to the courts that detail the protected person’s assets.

Here are three ways to reduce the stress of serving as conservator:

  1. Keep all financial accounts separate.
  2. Never use the money for personal expenditures.
  3. File annual accountings with the court.

Of course, there’s a fourth tip as well: Hire a qualified CPA or probate law firm to help you keep track of the conservatorship assets. This is often the best way to reduce stress in a conservatorship. It will give you the personal confidence that things are being done correctly, and will reduce your risk for personal liability.

Being a conservator is a detail-oriented job, and one that involves providing for the needs of the incapacitated person while keeping track of all income and expenditures. At the same time, family members or other involved parties may have concerns about how the conservator is fulfilling his or her responsibilities. They may wonder if conservator is making bad choices or they may even suspect the conservator of stealing money from the protected person’s accounts.

Wherever money is involved, emotions can run high (as can temptation). And since a conservatorship involves money management for a protected person, conservators need to take care to understand their responsibilities, and follow them. At the same time, family members or involved parties need to be aware of potential mistakes or, worse, misdoings.

If, for example, a conservator squanders money reserved for the care of the protected person, the family or involved parties may feel they need to call the police for assistance. But in these instances, the police will usually not take any action, stating that it is a “civil matter”. Such situations then must be handled through probate court.

If you suspect something is amiss with a conservator, do what you can to gather evidence about the situation to make sure the conservatorship is being handled properly. If the conservator is mishandling the estate, enlist the assistance of an experienced probate attorney to resolve the situation and, if necessary, recover lost funds or assets.

Remember, it is natural to feel some stress if you’re involved in a court proceeding involving a conservatorship. You are likely unfamiliar with particular court rules and laws as well as uncertain of how to deal with judges and lawyers.

But you’re not alone. If you have a loved one who needs the assistance of a conservator or have been appointed as a conservator, it’s important to consult with an experienced probate attorney.  We’re here to help – and to put your mind (as well as that of the protected person) at ease.

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  • 15
    Jul 15
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How to Avoid Disputes in a Conservatorship

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How to Avoid Disputes in a ConservatorshipWhen a loved one needs help managing finances or legal affairs, a conservatorship is often the best option. The conservator, usually a family member or trusted friend, has the authority to act in the interest of the protected person’s legal and financial affairs. As beneficial as this can be for the loved one, at times this transfer of power can lead to disputes over certain decisions and situations.

First of all, though, we should clarify what a conservatorship dispute is. For one thing, it differs from a guardianship dispute. A guardianship dispute concerns disagreements about who should be making decisions regarding where the incapacitated person lives and the healthcare he or she receives. A dispute about a conservatorship is a disagreement about who should be in control of money and assets.

Most disputes surrounding conservatorships, then, involve money matters. A conservator may even be abusing his or her authority. Examples could include stealing money or not acting in the best interest of the protected person. But far more common are the disputes arising out of mistakes – so it pays to be aware of some of the pitfalls.

There are three common mistakes people make in conservatorships:

Mistake 1: Failing to segregate conservatorship assets. All assets must be transferred from the incapacitated person’s name into conservatorship accounts.

Failing to separate the protected person’s cash and assets from the conservator’s personal cash and assets can have significant legal consequences. This is a very sensitive area: A conservator may unknowingly use funds from the conservatorship for his or her own use, or may even think it’s okay to use an incapacitated person’s funds for personal use. But the conservator must repay all funds to conservatorship accounts. In the State of Arizona, a conservator can also be fined an additional amount on top of the original sum taken. The conservator can also be disinherited from the protected person’s estate and be made liable for legal fees that have been incurred as a result of mismanaging funds.

Mistake 2: Failing to keep detailed records. The conservator must document and account for all transactions. Dealing in cash, withdrawing funds from an ATM, failing to keep receipts and not keeping track of time spent on the conservatorship are all accounting issues that can leave a conservator liable to accusations of mishandling the responsibilities of the position. If you don’t keep accurate records, you may be held personally liable for all money that isn’t accounted for.

Mistake 3: Failing to comply with court orders. As a conservator, you are responsible for filing an inventory, filing a credit report, submitting a budget and performing annual accountings of the estate. If you fail to comply with the court’s orders and the conservatorship statute, you as conservator may also risk being removed from your position.

The best way to avoid making these mistakes is to be aware beforehand of all the responsibilities and requirements of being a conservator. If you’re not good with recordkeeping and other detailed work, it may be best to defer the position to someone who’s better suited to such things. One option is to get a licensed fiduciary appointed.  A licensed fiduciary is a specially trained person who regularly serves as conservator and/or guardian in cases.

That said, remember that if you do accept the position of conservator, you don’t have to do it alone. Find an experienced probate attorney to help you understand the requirements of the position, and to comply with them.

If you have questions about how to resolve or prevent a dispute in a conservatorship, comment below or contact our office. We’d love to help.

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  • 08
    Jul 15
  • 2

How to Petition for Emergency Conservatorship

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How to Petition for Emergency ConservatorshipAs loved ones age they may need help managing their finances or legal matters.

A durable general power of attorney can be a great tool for helping older loved ones when they get to the point that they need help. Simply put, it’s the written authorization to represent or act on another’s behalf in private affairs, business, or some other legal matter. A durable general power of attorney is good in many situations, such as selling a car or home. The durable general power of attorney can give others the legal rights to perform or assist with any legal acts that the person covered under this power of attorney would do for him or herself.

In certain situations, however, a general power of attorney either is not available or is perhaps insufficient to the situation. In those cases, you may need to obtain a conservatorship.

First, let me define conservatorship for you. A conservatorship is a court proceeding that appoints a person or entity (such as a private fiduciary – a fiduciary is a legal or ethical relationship between two or more parties.). This person or entity will have the authority to manage the affairs of a minor or of an incapacitated adult who is unable to manage his or her property or financial matters.

Let’s look at a few situations where a power of attorney may have limited usefulness:

  • The person listed as the agent on the power of attorney turns out to be dishonest; this person may be stealing money or otherwise mismanaging assets.
  • The person listed as the agent may be unavailable to fulfill the role of power of attorney.
  • The power of attorney is somehow invalid.
  • The family is fighting over who should control the assets.

If a conservatorship is needed urgently for the above or other reasons, you can petition the courts for an emergency conservatorship.

You may have an emergency situation if your loved one’s bills are not getting paid, if your loved one is making poor financial decisions or if someone is stealing money or taking advantage of your loved one’s financial situation.

A hearing will be scheduled either within a few weeks or within a few days, depending on whether you can prove that there is an emergency.

If you are seeking to remove a current conservator who is either abusing power or mishandling assets, you must provide evidence of this to the court. A probate or litigation attorney can help you get the evidence you need to establish your case.

If you’re unable to provide evidence to prove that the situation is an emergency, the court will schedule your hearing as it fits into its schedule, which may take several weeks.

If the court hearing needs to be made immediately, then the court will treat it as an emergency and appoint someone without giving the other interested parties an opportunity to appear.  A follow-up hearing will then be scheduled to ensure that everyone involved is given due-process rights and allowed to contest the conservatorship if it’s felt to be necessary.

Probate courts are familiar with emergency situations. They are there to help. Remember that you have options. With the assistance of an experienced probate attorney and the probate courts, you can get help resolving the situation.

If you have questions about an emergency conservatorship, give us a call. We’re here to help.

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  • 01
    Jul 15
  • 1

How to Handle Estate Emergencies After a Loved One Passes Away

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How to Handle Estate Emergencies After a Loved One Passes AwayDealing with the death of a loved one is always difficult. But death isn’t always the hardest part for the survivors. Many family members are surprised by the challenges and conflicts that arise after the funeral when the family works to settle the estate. If you find that you cannot resolve a conflict regarding your loved one’s estate, you may need to seek assistance from an experienced probate attorney.

I’ve worked with many families in which bickering siblings made emotionally charged and hasty decisions when they distributed the personal property of a deceased parent. It often ended in chaos. Often, I’ve found that executors or trustees grossly mismanage bank accounts and other assets, and consequently deprive remaining family members of their portions of their parent’s legacy.

Naturally, everyone wants the administration of a deceased person’s property and money to be orderly and methodical. But if it isn’t, and if you feel the situation is on the verge falling apart or has already deteriorated into an estate emergency – through misunderstandings or power struggles or other complicated interpersonal relationships – you have two legal options:

  1. Get a personal representative or executor appointed by the court (if one hasn’t already been appointed), or
  2. Petition for an immediate protective order from the court (if the appointed representative or executor is mismanaging the estate).

The biggest mistake I see families make when they try to resolve arguments about distributing their deceased loved one’s belongings and property is to take the law into their own hands. It’s vitally important that you go through proper legal channels to handle an estate. This avoids later flare-ups and also ensures an orderly distribution of assets and legacies. Take these essential steps:

  1. Secure the estate’s property until an executor or personal representative is appointed. If necessary, enlist the help of a third-party fiduciary to do this by being appointed as a Special Administrator. (The police will not intervene in family-estate issues.)
  2. File for an immediate protective order from the court with the assistance of an experienced probate attorney.
  3. Have a representative or executor appointed to manage the estate.

With a qualified representative or executor is in place an estate can be settled according to the will or trust that a loved one has left in place. Without quick action and the help from a special administrator, you risk a delay in probate proceedings and the disappearance of personal property.

If, after your loved one has died, you find that his or her estate is not being administered fairly or methodically, you may have an emergency on your hands. Be prepared to take immediate action if you suspect foul play or mismanagement of personal property in these instances. Talk to a probate lawyer right away.

Delayed action may leave you with no inheritance and no recourse. Working with an experienced estate attorney will not bring your loved one back, but it will ease your mind knowing that your late loved one’s wishes will be carried out.

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  • 24
    Jun 15
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Handling Emergencies in Guardianships and Conservatorships in Arizona

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Handling Emergencies in Guardianships and Conservatorships in ArizonaIf you notice certain changes in an aging family member, it might be time to seek outside help. When a loved one can no longer make intelligent decisions about his or her healthcare, housing, finances or legal matters an emergency guardianship or conservatorship may be the solution.

Emergency guardianships and conservatorships are legal mechanisms created under the direction of the court to assist a person who has become incapacitated or debilitated.

The roles of guardian and conservator in Arizona are similar but distinct.

  • Guardianships concern specifically healthcare, living arrangements and other personal issues.
  • Conservatorships  deal with financial decisions.

A guardianship or conservatorship may be necessary if your loved one has a debilitating condition such as dementia and someone needs to step in immediately to take care of things. For example, if your loved one is not paying bills, or is wasting money, a conservator might be appointed to assume these financial decisions and responsibilities.

On the other hand, a guardian might be appointed if your loved one is continuing to drive even though it’s dangerous. Similarly, if your loved one is no longer safe at home but refuses to move, you may need to be appointed as guardian to make this decision concerning where your loved one should live.

Sometimes the court needs to get involved even when there is a healthcare power of attorney or general power of attorney. For example, I represented a family of three brothers whose mother was in hospice. One of the brothers was granted power of attorney for health care, and his mother’s living will provided him with the authority to act for her. But without communicating to his brothers, this son put the mother in a hospice where food and fluids were withheld, contrary to the mother’s wishes. (Can you imagine? This older lady was able to communicate that she wanted to eat and drink but the son instructed the hospice to withhold all food and fluids.)

The two brothers learned of their mother’s situation and came to her aid. Within 72 hours of contacting me, we were able to work with the probate court and appoint one brother as temporary guardian. He restored care to the mother, taking her out of an untenable situation and ultimately saving her life.

I’ve also helped clients in cases where an emergency conservatorship was necessary to protect the financial health of a loved one when someone was misusing or stealing money.

Every situation is different.
Searching for solutions can be incredibly frustrating and difficult.
But you don’t have to do it alone. Working with an experienced attorney, you’ll take comfort from knowing there is a solution to your situation.

Since 1998 I’ve been helping clients resolve both simple and complex issues and have helped them find resolution and peace of mind. We’d love to help you, too.

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  • 17
    Jun 15
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Life and Estate-Planning: What Is a Conservatorship?

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Life and Estate Planning What Is a ConservatorshipWhen an adult is no longer able to care for himself or herself, the court can appoint another person to take over responsibility of managing finances and other everyday affairs. The person appointed (usually a spouse, family member, relative or hired professional) would serve as conservator and collect income and pay expenses on behalf of the protected person.

It can be difficult for an adult child to let a parent know that a conservator is needed. A parent with dementia or Alzheimer’s, for example, may not be aware of a problem. The parent can also become confused in thinking that the child is trying to take over money matters. The parent may think that the child is trying to cheat the parent, or the parent might feel that a vestige of independence is being removed.

Most such situations are resolved by requiring the person in need of help to go through neurological and psychological examination by a trained physician, psychologist or registered nurse. The court relies heavily on the results from these examinations to determine the need for a conservator.

This level of care protects those who are incapacitated from losing assets and being evicted from their homes or living facilities because they have failed to make payments.

Conservators are not, however, required to pay for the care of the protected person with the conservator’s own resources. The conservator should use the protected person’s resources to take care of expenses. The conservator can then apply for government benefits if needed to pay for the cost of care.

Some of a conservator’s duties include:

  • Obtaining a credit report on behalf of the protected person.
  • Creating a budget for the protected person’s finances.
  • Sending annual accounting reports to the court, as specified in that state.

Should the conservator fail to fulfill these responsibilities, he or she can be replaced by someone better suited to the position. Conservators who mismanage funds can be held personally liable.

If you have an aging loved one who is not making careful financial decisions, a conservatorship can be a good solution. Conservatorships are complicated. If you don’t like balancing your own checkbook or reviewing financial statements, then acting as a conservator is probably not something you should undertake. You may benefit from the help and direction of a financial conservator.

If you have questions about conservatorship or serving as a conservator, I’d love to help. Please comment below or contact our office.

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  • 10
    Jun 15
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What Is a Guardianship?

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What Is a GuardianshipSince life expectancy has increased over the last two decades., a growing group of Americans will likely need some kind of long-term assistance. An important part of preparing for the future should you become unable to care for yourself is designating a health care agent and (if needed) a legal guardian. Having a health care power of attorney can usually avoid the need for someone to get appointed as a guardian through the court system. However, sometimes despite your best attempts at planning, someone will need to go to court and be appointed as your guardian.

A legal guardianship is a legal action in which someone is appointed by a court as a guardian to make decisions regarding healthcare and personal well-being for another person (who, in legal terms, is referred to as an “Incapacitated Person” or ward). These decisions can include living arrangements, medical care and whether the family should be able to visit.

Guardianship is a big responsibility, and it can sometimes be challenging. For example, I once represented a man who was caring for his mother as her legal guardian. They both lived in the Phoenix area. This man’s brother and sister, who lived in Michigan, wanted their mother to move out to live with them. Their mother was being well taken care of and was happy in Phoenix. This could have proved difficult, with different children wanting different things for their parent. But through working with my client on aspects of his guardianship, we were able to arrange a visitation schedule for the family, similar to child-custody arrangements common in divorce situations.

Guardianship is not that well-known a function among the general public. And common misperceptions and misconceptions exist.

• One is that the guardian is legally obligated to use personal resources to support the ward. This is incorrect. A guardian’s legal obligation is to use the ward’s resources to support the ward, not the guardian’s personal assets.

• Another is that the guardian assumes liability for the actions of the ward. This is not true except in cases where, say, the guardian gives a car or a gun to the ward. If the ward crashes the car or shoots someone with the gun, the guardian can be held liable if the guardian should have known that allowing the ward to have the car or gun was dangerous.

A guardian is required to sign a document called an Order to Guardian and Acknowledgement, which outlines the guardian’s responsibilities. A guardian should this document carefully and refer to it during the guardianship to prevent errors, and ensure that all responsibilities are being followed.

Here are two common mistakes that many guardians make:

  1. Failure to file an annual guardian’s report with the court. If you do not file this report, you will have to attend a hearing and explain why the report was not filed.
  2. Failure to restrict access to family and others when appropriate. This can justify removal of the guardian if the guardian is acting out of spite or maliciousness (as opposed to protecting the ward from people who may be dangerous).

As we age, our needs change. A health care power of attorney is an important part of a well-planned estate to make sure a person’s needs will be met as they arise. But sometimes this document can’t be found, or there is a dispute over who should be making the decisions.  In that case, someone needs to go to court to be appointed as a guardian. Just as it can be a delicate situation to consider making a will or plan an estate, it can be difficult to approach one’s parents about needing help now or in the future. It’s important to be proactive and address these issues sooner rather than later.

That’s where you come in. Remind your parents that you care about them and that you want to do what’s best to promote their health and well being, both today and in the months and years to come. And sometimes you need to make the tough call and get appointed as guardian even if your mom or dad does not want to give up control over their personal or health care decisions.

Remember that you aren’t alone. This is a common situation faced by adult children caring for their elderly parents.

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  • 03
    Jun 15
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Resolving Disputes Involving Trusts

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Resolving Disputes Involving TrustsTrusts are legal arrangements in which someone holds property for the benefit of someone else.

Trusts can minimize estate taxes and prevent the need for probate. Trusts also offer greater precision in wealth management and distribution, and can protect your legacy.

But given the human element involved in estates and trusts, disputes can arise when a trust is being settled, even if you’ve given proper care to creating a trust.

Some common examples of trust disputes include:

1. A trustee stealing or misusing money or property in the trust.
2. Questions over whether an amendment to a trust is legitimate.
3. Uncertainty regarding the running of a business, should the trust own a business.

What is a trust dispute, then?

Simply put: If you’re a trustee and family members accuse you of mismanaging the trust, you are involved in a trust dispute.

Or, if someone else is the trustee and that person is mismanaging or stealing assets (or accused of doing so), then you are (or probably should be) involved in a trust dispute.

I have experience in trust disputes. In one particularly lengthy trust dispute case, I represented a professional licensed fiduciary who was the trustee of a trust.

Even before her death, the woman who created the trust was aware that her two adult children had been fighting with each other over how her trust would be settled.

After her death, the younger sibling accused the older one of stealing money from the trust.

The older sibling accused the younger of convincing their mother to amend the trust after she had become incapacitated.

Both accused the other of elder abuse and wanted the other to be disinherited. The case was in a standoff for months. It progressed very slowly through the court system.

This case shows the mistakes people make when resolving trust disputes. These
include:

1. Trying to settle disputes without the assistance of an experienced probate litigation attorney.
This area of law is very complicated and confusing – even to lawyers who do not work regularly in the area of probate disputes.
Statutes of limitations can be detrimental to resolving disputes if the disputes are not handled properly (and within the required time).

2. Not going to court when there is the possibility of a conflict of interest.
If you are both trustee and beneficiary, it can be tricky to avoid the appearance of acting in self-interest when dividing assets.
In such situations you should file a petition with the court asking for court guidance on how to distribute the assets and avoid conflict of interest.

The best way to avoid mistakes when navigating a trust dispute is to enlist the support of a skilled probate litigation attorney.

With the assistance of a qualified attorney, you may be able to settle an affair outside of court, saving you time and money.

Either way, an experienced attorney will help you prevent, negotiate, settle and litigate disputes to avoid costly losses.

If you have any questions about resolving trust disputes, I’d love to help. Give us a call.

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  • 20
    May 15
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Solving Disputes Involving Estates

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Solving Disputes Involving EstatesResolving disputes over estates, wills and trusts is often a delicate process. In a previous post we looked at the definition of a probate dispute (a dispute or conflict among family members that arises while settling a deceased loved one’s estate). As we’d seen, resolution to these conflicts doesn’t always come easily. An experienced probate and dispute litigation attorney can help you navigate the complex and often-confusing situations associated with settling an estate.

Consider a case where I represented two brothers in an estate dispute. The father had died a number of years earlier, and the mother had remarried. Later, both she and her second husband passed away. Before their deaths, the mother and her second husband – the stepfather – had revised their estate plans so the stepdfather’s children were in charge of everything after both parents died.

Instead of selling and distributing the home and assets, the stepsiblings moved into the parents’ home and refused to distribute the estate. (The estate included personal items of my client’s father: military medals, family heirlooms, photos and other irreplaceable family keepsakes). The stepsiblings were even threatening to give away or donate many of these treasured family heirlooms.

I helped resolve this dispute by going to court and obtaining orders to force the stepsiblings to turn over the heirlooms. We negotiated a resolution that saved my clients a lot time, money and further heartache. In the end everything was distributed fairly according to their parents’ wishes.

That was one case, all-too similar to many others. Here are a few questions to consider in estate disputes, where the assistance of a dispute-litigation attorney is beneficial:

  1. Who should be the personal representative or executor?
  2. Is the personal representative or executor doing what he or she is supposed to be doing?
  3. Is the will valid?
  4. Was there a will but is someone hiding it?
  5. Is a stepfather or stepmother in charge of the estate? Or are stepsiblings in charge of the estate?

The best way to solve an estate dispute is to address the issue when it arises, rather than waiting to see how it might play out. Seek the assistance of an experienced litigation attorney as soon as possible after your loved one passes away. This is true whether you have been nominated to be in charge of the estate or if you’re a beneficiary.

With an attorney assisting you in an estate dispute, you will have the advantage of an experienced guide to help you navigate a complex legal system. The dispute will be resolved in less time than if you were to attempt it on your own. You’ll also have peace of mind knowing that the estate will be settled as your loved one intended.

If you have any questions about resolving an estate dispute, please contact our office. We’d love to help.

[will write up an alternate CTA to send people to the quiz/whitepaper that will be the next step in the gravity well]

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  • 13
    May 15
  • 1

Probate Disputes: How to Deal with Estate Conflict After Someone has Died

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How to Deal with Estate Conflict After Someone has DiedSettling an estate after a loved one’s death is a complex process.  The process can be even more challenging if detrimental disagreements and conflict arise among the various people who believe they are entitled to an inheritance from the estate. The court offers a recourse to resolve such probate disputes.

Here are five of the most common probate disputes that arise after someone has died:

  1. Who should be in control of a deceased person’s property? (In other words, who should be named the Executor or Personal Representative?)
  2. Has a trustee or personal representative done something wrong? Or has that person failed to do what was required?
  3. Did someone do something wrong prior to the person’s death? (For example, did someone acting as a guardian or conservator or agent under a power of attorney do something wrong?  Perhaps a trustee helped himself or herself to money held in trust?)
  4. Who should get the property of a deceased person?
  5. Is the last will and testament valid or was it forged? Or was the deceased person pressured to sign it?

The most common probate disputes arise when the personal representative or executor of an estate is doing a poor job of fulfilling executory responsibilities.

Let’s look at a hypothetical example. When Sue dies, her son Richard is appointed as personal representative. Instead of selling Sue’s house and splitting the proceeds between his siblings (as Sue’s will specifies), Richard moves in and takes up permanent residence. He never sells the house or distributes the proceeds to the rest of the family.

To complicate matters further, Sue has had a mortgage on the home and a loan on her Buick. Her will had stated that these assets – the home, the car – were to be sold with the money from the sale distributed equally between her children, but Richard begins making the payments to the bank so the bank never complains.  Richard doesn’t take very good care of the house and car, and at some point, Richard loses his job and stops making the payments to the bank.  Now the value of the house and car have gone down and the bank is threatening to foreclose on the house and repossess the car.

Richard’s sister Beth has had enough and doesn’t want to see their mother’s legacy squandered by her brother’s failure to live up to his responsibilities as personal representative. Beth calls the police to get help evicting her brother, but the police wont’ get involved in such cases, except to prevent physical violence.

This is where probate court and a probate litigation attorney can help.

But probate should be brought in quickly. One of the biggest mistakes people make in situations similar to this is waiting too long to hire an attorney. Delayed action can result in disappearing assets.

Another common mistake is hiring an attorney who has little or no experience in probate litigation. An attorney without direct experience in resolving probate disputes won’t be able to advise you properly and may in fact leave you with the impression that nothing can be done.

Dealing with disputes when settling an estate can be quite tricky. Finding common ground in any situation may be extremely difficult without the help of a qualified lawyer. If you’re dealing with a complex situation, don’t attempt to handle the situation without the help of a skilled probate litigation attorney.

Probate attorneys do more than provide legal information. They will serve as your legal “coach” and will help you to arrive at the best possible outcome.

And working with an attorney who knows how to solve general probate disputes will give you confidence that your loved one’s estate will be handled properly.

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  • 06
    May 15
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Pitfalls of Estate Planning: When Assets Are Used for Personal Benefit

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When Assets Are Used for Personal BenefitA trustee must never use the assets of a trust for personal benefit (unless this is specifically permitted by the trust). There’s really no wiggle room here. Trustees are held to the highest legal standards.

If you’re serving as a trustee, conservator or guardian, it’s important to clearly understand the duties of your position to be certain that you are performing your duties correctly and to protect yourself and reduce your liability in case of error.

Most cases where assets are mismanaged involve trusts. This is because trusts are normally unsupervised. As a result, it’s not uncommon for a trustee to neglect providing beneficiaries with annual accountings or to keep detailed bookkeeping records. Laws vary by states, but in Arizona, current law requires that a trustee give annual accountings and provide beneficiaries sufficient information to protect their interests.

Some trustees, unfortunately, take the breach of duty further and use an estate’s funds for their personal use. Taking family vacations, buying cars or paying off a personal mortgage are all examples where a trustee has breached fiduciary duty by misusing trust assets.

Here are the three biggest mistakes trustees make when managing trust assets:

  1. Failing to keep records.
  2. Taking unauthorized personal “loans” from the trust.
  3. Using assets for personal use – and thinking they won’t get caught.

A trustee who mismanages trust assets—whether intentional or unintentional—can face severe legal consequences. But you should know that if you’re serving as a trustee and don’t understand your responsibilities and duties, you don’t have to do it alone. An attorney with experience in trust management can help you avoid making costly mistakes and ensure that you’re aware of your responsibilities.

From the other side, if you’re a beneficiary and you suspect the trustee is mismanaging assets, don’t wait to take action. Seek legal counsel from a skilled probate attorney.

Settling an estate is a complex process. Probate court offers resources and recourse for those who are working to settle a loved one’s estate. We’d love to help make this process easier for you and your family. Give us a call with any questions about how you can properly manage a trust, and what you can do when trust assets are being mismanaged.

In the next post, we’ll look at how to deal with estate conflict in probate disputes.

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  • 29
    Apr 15
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How to Get a Physician’s Report for a Guardianship or Conservatorship

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How to Get a Physician’s Report for a Guardianship or ConservatorshipCaring for an aging parent or loved one can be challenging. Especially when one or both parents become unable to care for their health and finances. In these situations, it may be necessary to seek a guardianship or conservatorship to help your parents get the care and support they need.

Obtaining a physician’s report is an important step in applying for guardianship or conservatorship. In the State of Arizona, a physician’s report can be completed by a physician, a registered nurse, a psychiatrist or psychologist. The content of the physician’s report (which varies from state to state) will be used to determine whether the situation requires a guardianship or conservatorship.

Here are three important steps you need to take before the court can appoint a conservator or guardian:

  1. Take action. If a loved one is not paying bills, starts to make poor financial decisions or isn’t receiving the healthcare he or she needs, you should be proactive. Learn more about what you can do to help. Frequently aging parents will resist a child’s urging to get help. But be persistent. You are their best advocate.
  2. Get a physician’s report. If a parent refuses to be examined by a physician, you can enlist the support of a social worker or anyone else familiar with the situation by getting a statement about what’s going on. The court can use this statement to appoint a physician or other professional to make an evaluation.
  3. Prepare for a court hearing. Petitioning for guardianship or conservatorship requires a lot of paperwork. Remember to include the physician’s report and other supporting documentation. It’s much easier to spend a little extra time preparing for the hearing than dealing with the frustration and delay of rescheduling a hearing because you didn’t have all the necessary paperwork. Make a checklist of what needs to be included; if you are working with an attorney, the attorney will help with the details.

If you’re seeking a guardianship or conservatorship for a loved one, or if you’re concerned about a current guardian or conservator, it’s important to know how to get a physician’s report in order to establish your case.

If you have any questions about how to get a physician’s report or about guardianships or conservatorships contact our office. We’d love to help.

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  • 01
    Apr 15
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Administering a Trust with an Ongoing Business

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Administering a Trust with an Ongoing BusinessAdministering a trust with an ongoing business can be intimidating and overwhelming. It is even more tricky if the business needs to go through probate. And for good reason.

As a trustee or personal representative, you will be held to a high standard as you administer the trust, a standard higher than that the original owner was held to. And if you have specific knowledge (such as having owned a business before, being an attorney or CPA) you will be held to a higher standard still.

Here are three steps you can take as a trustee or personal representative that will help you better manage your responsibility as well as reduce your liability as you administer an estate or trust that has business or complex investments:

  1. Assemble a team. Even if you have experience with owning and operating a business or in managing an investment portfolio, you can be held accountable for making decisions that have a negative impact on the viability of the trust’s business or assets. Seek help from qualified professionals (CPA, probate attorney with experience working with businesses and other relevant advisors.)
  2. Delegate control. You need to find a qualified person to take responsibility or accountability for his or her actions in managing this business and operating it. That person must be committed to making the right decisions, even difficult ones such as firing family members. (This in particular is a common and difficult decision that must be made with a number of trusts.)
  3. Maintain communication. As personal representative or trustee, it’s your responsibility to keep beneficiaries informed of the state of the business or other assets.

Passing along the commitments and responsibilities of a business and business assets through a trust can be complicated. The trustee or personal representative who administers the estate should understand the responsibilities of the position.

Without information, knowledge and expertise needed to run a business profitably, the trustee can be held liable for a decline in the business. Assembling a team and delegating control are two critical steps a trustee should make to maintain and manage the assets. Be sure to keep the beneficiaries informed and in the loop regarding the state of affairs.

If you need help understanding the duties of a trustee and how to manage a business or other complex assets in a trust, we’d love to help.

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  • 18
    Feb 15
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When to Get Help from an Arizona Probate Attorney

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When to Get Help with ProbateDo-it-yourself projects can range from remodeling your home to engineering homebrew biodiesel to fixing your car to building worm-composting systems. But just because you can do something yourself, doesn’t necessarily mean you should. If you are named as a Personal Representative or trustee, and some of the property is in Arizona, you need to hire an experienced Arizona probate attorney.

That means, especially, something as important as probate.

Managing and settling an estate is one thing that may not be well-suited to doing it on your own. In some cases, settling an estate can be done without the assistance of an attorney. But in most situations, settling an estate can be quite complex and difficult to navigate on your own. If you make mistakes as a personal representative, you may pay more in penalties than you would pay for an attorney to help execute the will.

The two most common mistakes probate DIYers make when managing an estate are these: The failure to maintain adequate documentation, and the failure to pay taxes or creditors before distributing assets.

Unfortunately, it’s easier to make mistakes than to avoid them. Probate is a technical area of law that varies for each unique situation.

In most cases, you can’t really do it by scanning the Internet. Here are 10 tricky areas of settling an estate that an attorney can help you navigate:

  1. Dealing with creditors
  2. Sending the proper documents to interested parties
  3. Making sure the proper forms are filed with the court
  4. Locating and interpreting your estate planning documents
  5. Making sure you know how to properly protect the deceased person’s
    property
  6. Creating an accurate inventory of probate assets 
  7. Adequately informing necessary parties about a person’s death: bankers, insurance companies, the Social Security Administration.
  8. Discussing the division of assets with the heirs
  9. Keeping adequate records, especially if you’re being reimbursed for your
    time serving as personal representative
  10. Making sure tax forms get filed properly

Most people have minimal knowledge of the technical legal aspects involved in
settling an estate. What may seem to be just a simple mistake could actually result in fines, lawsuits and a lot unnecessary struggle and grief during an already stressful time.

If you are serving as a personal representative, it is your duty to make sure the estate is handled correctly. You don’t have to do it yourself. Seeking qualified help is the best way from protecting yourself from mistakes and their consequences.

If you have questions about whether you need an attorney to help you settle an estate, we can help. Comment below or contact our office.

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  • 11
    Feb 15
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The Role of a Personal Representative, Part 2

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The Role of an Estate Planning Representative, Part 2As I mentioned in my previous video, a good estate plan covers key life decisions. Your personal representative will be the one to make the necessary decisions to carry out your wishes.

Here are further responsibilities, based on the law in Arizona, but pertinent no matter where you live in the U.S.

  1. Provide an inventory of assets. This is where having an attorney with some experience comes in handy to help you classify different types of assets, especially personal property like furniture, ceramics or porcelain and photographs.
  2. Comply with the applicable standards of care. As personal representative, you are required to perform duties with prudence, reasonable care and caution.
  3. Keep detailed records. Keep and maintain records of everything: copies of checks, receipts, bills. Everything. You need to be able to prove where every dollar goes. So, avoid dealing in cash.
  4. Pay valid debts and expenses. There’s a specific procedure for determining whether a debt is valid. This takes into account all the debt and how to treat creditors equally as part of a personal representative’s fiduciary duty.
  5. Pay applicable taxes. Always pay applicable taxes before paying creditors and distributing assets.
  6. Distribute remaining assets. After all taxes and expenses have been paid, the remainder of assets can be distributed as the will has specified.
  7. Change the address of the estate. Until probate is closed and you complete your role as personal representative, you must notify the court in writing if you move or if your mailing address changes.
  8. Document payment your receipt of payment as personal representative. It’s important to document meticulously the time you’ve spent and the expenses you’ve incurred when seeking reimbursement from the estate you’re managing.
  9. Court involvement. The court prefers minimal involvement in settling estates where a personal representative has been appointed, but will get involved if the estate is not closed within two years.

To be sure your wishes are carried out, carefully select a personal representative for your estate. A little extra planning now can protect your family’s future. You can read more about a personal representative’s duties here.

If you have any questions about the duties of a personal representative, I’d love to help.

  • 07
    Jan 15
  • 4

Probate Basics: 5 Things You Should Know About Probate

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Managing a loved one’s estate that’s gone into probate can be overwhelming and more than a bit confusing. But it doesn’t have to be. Here are some probate basics that can help you start to understand this process.

With proper estate planning, you can avoid a lot of the drama often associated with legal proceedings.

Most people don’t know how to properly plan their estates or the granting of their final wishes – so remaining family members are left to sort through an often-confusing mess. But if you understand what probate is – and how it benefits you – you can take the first step to avoiding drama and confusion.

5 Things You Should Know About ProbateLG

What is probate law?

Technical definition: Probate is a court-supervised process where a will or a trust is established to be the decedent’s valid will. It concerns validity.

But probate also applies to instances where someone is incapacitated, or when there’s a trust that’s been established (and there is a dispute that needs to be resolved). In general, probate refers to any court proceedings that deal with the deceased or incapacitated person’s affairs. (Probate court does not apply to murder, malpractice or other wrongful death cases.)

Translation: Probate is the first step in the legal process after someone dies, or if a living person is unable to make further decisions about his or her estate. The parties involved in settling the estate will go to probate court where a judge (no jury) will review the case and help straighten things out to settle the affairs of the deceased or incapacitated person.

Probate court accomplishes five basic things:

  1. Proves that the deceased or otherwise incapacitated person’s will is valid (this is usually straightforward)
  2. Appoints a person to be in charge of gathering and inventorying assets, paying debts, and distributing the assets
  3. Pays any outstanding debts and taxes
  4. Resolves various disputes that can arise, such as who gets what personal property or how much the house should be sold for
  5. Distributes the remaining property as the will directs (or under state law if there’s no will).

Benefits of Probate

Probate sometimes gets a bad rap. It’s expensive, it’s scary, it’s overwhelming: These are just a few complaints I hear often. There are regulations in place, however, to protect you. Lawyers can charge only what’s considered a reasonable amount for their service in probate.

Here are a few of the benefits of probate that make it a worthwhile proceeding.

  1. Probate gives you options. You can have a say in making sure things are taken care of correctly, according to directions given in the deceased persons’ will.
  2. Probate gives heirs and beneficiaries a voice. Probate gives you recourse should you need help as a beneficiary and heir to make sure the will is carried out properly.
  3. Probate provides perspective. In probate you get the benefit of having multiple people look at issues from various angles, which makes it more likely that you will find a decision that everyone will agree on.

For the most part, probate is a relatively quick and easy way to work out these details. Most cases get resolved within a few months.

To sum up, probate is a court that you can go to whenever someone either dies or becomes incapacitated. It’s a way of not only resolving issues that come up, but also of preventing issues both for the protection of the person in charge and for the other heirs involved.

Do you have any questions about probate? I’d love to help. Leave a comment below or give our office a call.

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