Tag Archives: probate dispute

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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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Appearing Pro Per: Why You Shouldn’t Represent Yourself (even if you’re a lawyer)

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There is a trend for people to represent themselves more and more in legal matters. This is called appearing “in propria persona” or “pro per.” But unless it is an extremely simple legal matter (such as a speeding ticket or small claims court dispute), you are always going to be better served by having an experienced legal advocate on your side. Here are the top 4 reasons why you shouldn’t represent yourself (even if you’re a lawyer) in probate court.
Reason #1: Even if there is no dispute now, there could be if you do something wrong. If you are the person in charge, such as the personal representative or trustee, then you are held to a very high standard. You have a fiduciary duty to act in the best interest of the estate, to act fairly, and to administer the estate or trust expeditiously. But the applicable probate statutes, plus case law, are complicated even for lawyers who practice exclusively in this area. And if you make a wrong move (such as distributing money to the wrong people), you can be held personally liable. Is it really worth saving a few thousand dollars to risk this much personal liability?
Reason #2: You don’t know the applicable law and rules of procedure. Unless you are an experienced probate and estate planning attorney, you are at a severe disadvantage. You are expected to know all of the applicable probate statutes, plus the probate rules, plus the civil rules (to the extent that they do not conflict with the probate rules). Then there are the softer issues, such as knowing when the hearsay rule or the Dead Man’s Statute apply. (Hint: Even if you can recite these rules by heart, that has very little to do with their application in real life during a real evidentiary hearing.)
Reason #3: You are taken more seriously by the opposing parties (and the court) if you have a lawyer. In grade school, did you ever have an older sibling, or a friend, who could help you stand up to a bully or show you the ropes of how to deal with social situations? I had an older sister who would give me straight-forward advice about how to handle various social situations. Or have you ever gone to a party in which you didn’t know anyone? That is a lot easier with a “buddy” as well. Having a lawyer is somewhat like this. You don’t need to always worry that you might forget something or do something wrong, because your lawyer has your back and is helping you navigate the system.
Reason #4: You can’t see outside your own bottle. We all imagine that we are the stars of our own movies. Yet we don’t know how others perceive us. Are we being taken seriously? Do our legal arguments make sense to other people? Is our line of thinking persuasive? There is a saying among attorneys that “An attorney who chooses to represent himself in court has a fool for a client.” Even lawyers who routinely handle legal matters know better than to handle their own cases. The reason is this: We (as lawyers) would be too emotionally involved in our own situation to be able to make rational decisions. This hurts us when it comes to making sound, logical decisions. It also hinders our ability to see the big picture, possible flaws in our thinking, and possible solutions.
If this applies to lawyers who routinely handle legal matters, then it applies even more to non-lawyers. There is definitely an advantage to hiring an experienced advocate to handle your legal drama for you. It will get done quicker and have a higher likelihood of success.

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