Please remember this is from my unpublished probate book #2 but you can get my whole first book on Amazon or just email me for a PDF copy. Thanks. Here’s chapter 6….
Chapter 6 – Beneficiary representation in probate
There are some probate cases where the beneficiary might feel they need their own attorney. Remember the attorney for the PR only represents the PR. While they may provide some information to the beneficiaries in the end they only represent the fiduciary; the PR. It thus may become advisable for a beneficiary, or heir at law, to seek their own counsel.
Some examples when a beneficiary or heir at law might want their own attorney:
1) Any time they have reason to believe, or are just concerned of the possibility, that the PR may steal from the estate;
2) If the PR’s attorney will not provide any information even after you have filed a request for special notice;
3) You believe you are an heir at law and the PR and/or their attorney are not treating you as such;
4) You believe there is a different (newer) will that should be probated;
5) You believe the will being probated was signed under mistake, undue influence, or in some other fraudulent type situation;
6) You believe the will is a forgery and not actually signed by the decedent;
7) You want protections in place to make it harder for the PR to steal the estate;
8) You want an attorney on your side to explain everything to you from YOUR point of view;
9) You don’t believe all assets have been included in the probate;
10) You just want to make sure things are done RIGHT.
In all of the above situations, and more, you can hire an attorney to represent you and only you. Or possibly a group of beneficiaries, with like interests, can get an attorney together. The bottom line is to have a separate attorney that is looking at the case from your perspective, your point of view and with only YOU in mind. The attorney for the PR naturally has a conflict of interest in that they will always look at the case from the PR’s mindset. Sometimes you need an attorney to watch out for you. Often attorneys can be hired on an hourly fee basis and sometimes the attorney will even take an assignment of a future interest. Each case is unique.
However, what if you can’t afford an attorney!? What can you do to protect yourself?
The first step is getting protections in place at the beginning of probate. Some simple thoughts:
1) Do not sign the bond waiver if asked. A bond, or surety bond, is similar to insurance if the PR runs off with the money. In a practical sense, in my experience, the bond company does not pay out quite as quickly as might your car insurance company. However, that’s the general theory. Either way, if a bond is required then the PR has to qualify for a bond BEFORE letters issue. If they have bad credit they probably can’t qualify for the bond without getting a co-signor (or “co-indemnitor”) and thus a bond is a good way of qualifying a person to be the PR in my opinion. That is, if they are bondable they are probably (but not absolutely) trustworthy.
2) Ask for the PR to not touch cash and put all cash into blocked accounts. It’s hard for the PR to run off with the money if it’s a Court ordered blocked account. Essentially the bank will not release funds without a Court order.
3) Opt for no authority under the Independent Administration of Estates Act (IAEA). A person without IAEA power has to get Court approval before taking most actions. This is a good way of protecting your interests but does make the PR’s job more difficult so think about it before opting for this measure.
4) Opt for limited IAEA but not full IAEA. This comes into play mainly when there is real estate. By only having limited IAEA the PR has to go to Court for Court confirmation on the sale of real estate. In a down real estate market this can be problematic as requiring Court approval of a sale can mean losing a buyer. On the other hand it does reduce the chances of a PR selling to his best friend for a discount price.
5) Request Special Notice. Without a doubt the simplest thing you can do is to file a request for special notice form (form ____) with the attorney for the PR. Most attorneys will honor the request by sending you a copy of all filed documents. This keeps you in the loop somewhat.