Category Archives: Death Of A Loved One

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When to Appoint a Special Administrator after Someone has Died

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If someone has died and there is an emergency about property, there is a solution. It is called a Special Administration.This blog discusses when to appoint a special administrator after someone has died. Some typical examples of when this is needed are:

a. If no one has access to the property to be able to look for a Will. Normally, if there is family around, the family be able to gain access to the house. However, if there is no family, a friend or fiduciary company may need to be appointed on a temporary basis (as a Special Administrator) to go onto the property and look for a Will.

b. If the family is fighting over family heirlooms and other personal property, it might be best to appoint a neutral third party to safeguard the property until a Personal Representative is appointed and until there is an agreement about how to divide things.

c. If the deceased person was obligated to do something (like complete the sale of a house), and a Personal Representative can’t be appointed in time for the closing.

These are just some examples that we see regularly. In any event, there is a solution. It will obviously increase the cost of the probate (because more documents need to be filed with the court and there needs to be at least one additional hearing).

Who can be appointed as Special Administrator? The Arizona statute (A.R.S. 14-3615) provides:

A. If a special administrator is to be appointed pending the probate of a will which is the subject of a pending application or petition for probate, the person named executor in the will shall be appointed if available, and qualified.

B. In other cases, any proper person may be appointed special administrator.

In other words, you appoint the person nominated in the Will. Otherwise, you can name “any proper person.” If the family is fighting, then the “proper person” is a neutral third party … preferably a licensed fiduciary.

You can see a video about this topic here. If you have any questions about special administrators, give us a call. And if you have any stories about special administrators or emergencies in probates, we would love to hear about them.


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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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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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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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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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