Jeffrey R. Schmitt
After the death of a family member, people are often left wondering what interest they have in the deceased’s assets. At a time of grieving, it can be difficult to know where to begin. Lack of information or misinformation can leave potential beneficiaries in the dark as to the manner in which the deceased’s assets will be transferred.
Obtaining Wills, Trusts, and Other Documents
Fortunately in Missouri, and many other states, potential beneficiaries have rights allowing them access to information regarding the estate. In Missouri, if a will exists for a decedent, the original will must be filed with the probate court upon the death of the creator of the will. The will becomes public record at that point. If a family member believes that a will exists but has not been filed, that family member can open a probate estate with the court in order to try and require production of a will or other estate plan documents.
Similarly, trust beneficiaries often have rights to obtain copies of trust documents. Trusts do not have to be filed with the court but instead may be maintained privately by the named trustee. However, in most circumstances, trust beneficiaries are entitled to a copy of the relevant trust documents and can require production of them through a lawsuit, if necessary.
Accounting of Assets
Trustees, executors, administrators, and agents under a power of attorney all have some duty to account as to the assets and liabilities of the probate estate or trust. After being appointed by the probate court, executors and administrators of wills have an obligation to file an inventory of assets and a corresponding obligation to advise the court concerning the liquidation or disposition of those assets.
Trustees of trusts have similar accounting requirements and are required by law to provide periodic accountings to the beneficiaries showing the assets, liabilities and expenses of a trust. If any of these fiduciaries fail in their accounting obligations, certain categories of heirs and beneficiaries have rights to compel the executor, personal representative, or trustee to prepare accountings and either file them with the court or provide the accounting to beneficiaries.
Discovery of Assets
A common concern for beneficiaries in estate matters is that a personal representative is hiding assets, has dissipated assets, or has incurred unnecessary or extraordinary expenses (which could be for the personal representative’s own benefit). However, the law provides certain rights for beneficiaries to make inquiries and investigate possible improper dissipation of assets by filing a lawsuit to conduct an investigation.
Discovery of asset proceedings are not only limited to decedent’s estates but also can be used to investigate conservatorships or situations where a power of attorney is misused.
Will and Trust Contests and Construction Actions
A more extreme remedy that goes beyond investigation is asserting wrongdoing with respect to the creation or amendment of estate plan documents and filing a lawsuit to contest the estate plan documents. People who believe they are aggrieved by an estate plan (including a will or a trust that was either created or amended improperly) have the right to file a lawsuit to try to set aside those estate plan documents.
Reasons for contest actions include concerns that the estate planning documents were improperly executed, that the decedent lacked requisite mental capacity at the time the documents were signed, or that other family members or friends unduly influenced the decedent to make or change their estate plan.
Additionally, some estate planning documents may be drafted in a way that leaves questions as to who the correct beneficiaries are or what interests they might have, and a will or trust construction lawsuit provides the ability to have a court review the estate planning documents in question and make orders clarifying the terms or concluding the identities of the proper beneficiaries.
As is the case with many lawsuits and requirements of the probate and trust codes, many of the above procedures and remedies have strict time requirements or statutes of limitation. While these can be difficult situations after dealing with the loss of a family member or loved one, it is vital that someone who has questions or is concerned about possible wrongdoing take action as soon as possible so that their rights do not expire.
Posted by Attorney Jeffrey R. Schmitt. Schmitt represents businesses and individuals in civil and commercial litigation matters including banking and finance, real estate, condo and homeowners associations, probate, professional liability defense, title disputes, transportation, and pension and retirement plans.
02/13/17 6:00 AM
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