Estate Planning: Helping Protect Your Interests

Rights of Will and Trust Beneficiaries

Jeffrey R. Schmitt

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. 

 

A Family Member Died, Now What? How to Begin Winding up a Relative’s Legal Affairs

David A. Zobel

David A. Zobel




The death of a loved one is never easy and will likely be an emotional time for you, your children, family, and friends. You may have a lot of things running through your head about what needs to be done, when, and how. To assist you through this difficult time, here’s an outline (in no particular order) of legal considerations necessary to begin the process of winding up your relative’s affairs. You can pursue these in order or at the same time. If it makes you more comfortable, you can skip ahead and contact an attorney at the outset. Finally, it is important to communicate with other family members so these efforts aren’t duplicated.

Order Death Certificates

One of the first things to do is obtain a certified death certificate of your relative and specifically multiple certified copies of the death certificate. Your relative’s financial and service providers, debt holders, the court, contracting parties, and many other institutions may need to see a death certificate to verify your relative’s death before they will begin their internal processes of closing your relative’s accounts. While some institutions will accept copies, many require a certified death certificate, which you or your attorney can get from your county vital records office. Depending on the office, it may take some time to process your requests, so performing this step sooner rather than later is recommended. Also, please note that death certificates are often ordered by the funeral home at the time the service is planned.

Gather Your Relative’s Estate-Planning Documents

If your relative had a will, trust, or any other estate-planning documents designed to transfer any property upon death, gather those documents together. For items with specific titles, e.g. the relative’s home, vehicles, and financial accounts, check for beneficiary or transfer on death provisions. Ideally, you will locate original copies of your relative’s estate planning documents. If you just have copies, consider whether another relative has the original document or where it might be located. If the documents are located in a bank safe deposit box, a bank officer may enter the box for the sole purpose of retrieving and filing a last will and testament.

Take a Preliminary Accounting

When you are gathering your relative’s estate planning documents, you will want to start taking a preliminary accounting of your relative’s assets. Here is a general checklist of information and documents to gather in preparation for your meeting with your attorney. In general, take note of the following: Continue reading »

A Family Member Died, Now What? Preparing for the Initial Meeting with the Attorney

David A. Zobel

David A. Zobel




In our recent post “A Family Member Died, Now What? How to Begin Winding up a Relative’s Legal Affairs,” we outlined several actions to take to start winding up a deceased relative’s legal affairs, including gathering your relative’s estate-planning documents and taking a preliminary accounting of your relative’s property.

Below is a general checklist of information and documents which will be helpful for you to assemble in preparation for meeting with your attorney. It is not necessary to have the checklist completed prior to the initial meeting. However, for reference, you may want to print this post, fill it out, and bring it with you to the initial meeting.

  1. Decedent’s Background Information (may attach a death certificate in lieu of this section):
    • Full Name:
      ______________________________________________
    • Residence Address:
      ______________________________________________
    • Date of Birth:
      ______________________________________________
    • Social Security Number:
      ______________________________________________
    • Marital Status:
      ______________________________________________
    • Spouse’s Name:
      ______________________________________________
  2. Relative’s Financial and Medical Affairs:
    • Employment Status:
      ______________________________________________
    • Employer’s Name:
      ______________________________________________
    • Banks / Institutions / Brokerages (including accounts held,
      e.g. savings):
      ______________________________________________
      ______________________________________________
      ______________________________________________
      ______________________________________________
    • Safe Deposit Box Location:
      ______________________________________________
    • Pension (if so, from where):
      ______________________________________________
    • Life Insurance Policies (provider(s) and amounts):
      ______________________________________________
      ______________________________________________
      ______________________________________________
      ______________________________________________
    • Vehicles and VINs:
      ______________________________________________
      ______________________________________________
      ______________________________________________
      ______________________________________________
    • Known Creditors (mortgage, credit card, etc.):
      ______________________________________________
    • Receiving Medicaid Benefits?
      ______________________________________________
    • Receiving Social Security Benefits?
      ______________________________________________
    • Important Notes / Special Circumstances to Tell Attorney:
      ______________________________________________
      ______________________________________________
      ______________________________________________
      ______________________________________________
      ______________________________________________
  3. Documents to Assemble (If you don’t have access to an account,
    just indicate that below):

_____     Certified death certificate
_____     Copy of death certificate of spouse, if widowed

_____     Original last will and testament and any codicils (amendments to the will)
_____     Copy of trust and any amendments

_____     Copy of all bank statements from accounts titled in relative’s name from month of relative’s death
_____     Copy of all brokerage statements from accounts titled in relative’s name from month of relative’s death
_____     Copy of all bank statements in the name of the trust for the month of death
_____     Copy of all brokerage statements in the name of the trust for the month of death
_____     Copy of all retirement account statements in the name of the relative for the month of death
_____     Original life insurance policies
_____     Death certificates for any predeceased owners or beneficiaries of insurance policies or co-owners of financial accounts

_____     Original vehicle titles (including boats, motors, and trailers) in the name of the relative and trust
_____     Copy of titles for any real property in the name of the relative or the trust
_____     List of extraordinary personal property (paintings, expensive jewelry, etc.)
_____     Original savings bonds
_____     Information on safe deposit box

_____     Information regarding any creditors of the relative (accounts, balances)
_____     Information regarding any Medicaid benefits the relative received
_____     Information regarding the relative’s beneficiaries/heirs (addresses, dates of birth and social security numbers)
_____     Information on any long term care policies
_____     Copy of funeral bill

David A. Zobel is a member of Danna McKitrick’s team of estate planning and probate professionals. If you would like to learn more about the considerations above, would like assistance administrating a relative’s estate or help with you estate planning needs, one of our firm’s experienced attorneys would love to meet with you.

Estate Planning – Why It’s Important for You

Misty A. Watson

Misty A. Watson




Recently we’ve heard a number of stories about estate planning blunders that have resulted in huge tax costs and undesired distribution of assets. While a $50 million mistake certainly makes for good headlines, the fact is that quality estate planning is not just for the rich and famous.

It is common for people of all kinds to find themselves in similar situations when loved ones die, albeit with less fortunes involved – all because the deceased did not plan appropriately for death or disability.

Estate planning is all about your control over what happens to the assets you have accumulated during your life (including planning to minimize estate tax) and your control over your health care decisions.

Benefits of Estate Planning

1.    Avoiding probate of your assets. Probate is a court process by which the heirs of an estate are determined and the deceased person’s assets are distributed to those heirs. The benefits of avoiding probate include:

  • Your assets can be distributed to or held for your beneficiaries in a timelier manner.
  • Your estate avoids costly statutory attorneys’ fees.
  • Assets can be held for minor children without court involvement.
  • Your estate is distributed to your intended beneficiaries versus under Missouri law. Continue reading »

Transfer on Death Deed Now in Illinois

Misty A. Watson

Misty A. Watson




On January 1, 2012, the Illinois Uniform Real Property Transfer on Death Act (Act) goes into effect. The Act permits owners of real property in Illinois to execute a deed which will allow for the property to be transferred to a designated beneficiary upon the owner’s death. If the property is owned jointly, the deed will transfer ownership upon the death of the second owner to the designated beneficiary.

The Transfer on Death Deed varies from its counterpart in other states in that it requires the deed to be executed with the formality of a Last Will and Testament. The deed must be witnessed by two witnesses, notarized, and the witnesses must attest that the person signing the deed is of sound mind. The deed requires certain language such as that it is not effective until the death of the owner and must be properly recorded before the death of the owner. Continue reading »

Lifetime Trust or Outright Distribution – How to Leave Your Assets to Your Beneficiaries

Misty A. Watson

Misty A. Watson




There are several ways you can leave your children (or other beneficiaries) your assets upon your death.

One option is an outright distribution. I call this the “here’s your inheritance” method. Upon your death, after payment of expenses and debts, your child receives their full share of the assets outright.

A second option is the staggered distribution method. This method gives your child a percentage of their inheritance at certain ages, dates, or events. A typical example is upon your child turning 30, he or she will receive one-third of their inheritance, at age 35 another third, and final distribution of the entire amount at age 40. In the meantime, your child would typically receive distributions of the principal and income of his or her share for needs such as a house down payment, educational expenses, or even a monthly stipend for living expenses. Another example would be an incentive based trust. With this trust, your child will receive 1/2 of his or her share if he or she graduates college and the remaining distribution if he or she maintains full-time employment for at least two years. Continue reading »

Electronic Estates – Keeping a Record of Your Assets

Misty A. Watson

Misty A. Watson




With the advent of electronic banking and e-statements, the face of our financial recordkeeping has changed over the past few years. Along with this change has come the limited knowledge of and access to your financial information. This is great for security now – but it can cause problems for your family when you are no longer around if you do not plan ahead.

Prior to online banking, when a person died the family could easily discover assets of the departed through statements delivered via “snail mail” – the U.S. mail. Bank statements would arrive in the mail on a monthly basis. Most brokerage statements would arrive at least quarterly. Worst-case scenario would be the annual statement from a life insurance policy, but there was usually a previous year’s statement available for reference.

Today, most people do their banking online and access retirement account/401(k) information online as well. They receive statements online with notifications via email, and dividends are electronically deposited. Continue reading »

Illinois Changes Its Power of Attorney Laws

Patrick J. Murphy

Patrick J. Murphy




The revised Illinois Power of Attorney Act, 755 ILCS 45/2-1 et seq. provides greater protection to principals. These revisions are designed to minimize abuses of the elderly, incapacitated and disabled persons by their agents serving under powers of attorney. House Bill 6477, the new state bill containing the changes, was passed by both houses and signed into law by Governor Quinn on July 26, 2010. The effective date for the changes is July 1, 2011. All powers of attorney which were validly executed prior to this date will continue to remain effective.

A few highlights of the changes to this Act are: Continue reading »