Clients and Conflicts in Probate

Over the next few articles, we’ll take a step back and look at some ethical issues that can arise when dealing with probate. We’ll only look at a few and then take some time to figure out how to handle such situations. In our first article, we’ll look at clients, who they are and how to avoid potential conflicts. If that sounds appealing, please continue reading. We hope it is both informative

Understanding the Attorney Roles

In most cases, the executor (or personal representative) of an estate believes that the attorney representing the estate is their own. However, as previously stated, this is an incorrect belief. In the majority of cases, the attorney represents only the estate. This does not include the beneficiaries.

The probate attorney, on the other hand, has a fiduciary duty to any estate beneficiaries. In fact, a will can be declared invalid due to “undue influence” if a beneficiary has a too-close relationship with an estate’s attorney! As you can see, it’s best to keep things strictly professional.

Conflicts of Interest in Probate

Any attorney who represents both the deceased and any beneficiaries may be in violation of conflict of interest rules. Please keep in mind that while an attorney may represent executors individually, there must be no hint of a potential conflict of interest.

A trustee may also have a conflict of interest if they are the parent of a remainderman who is their own child, which is especially true if the child is an infant. In the event of a conflict of interest, appointing a Guardian for the child would be far more beneficial.

Scott Counsel Is Here to Help

“There is certainly a lot to consider when dealing with all manner of things related to estates, rules and regulations, and a host of other things,” says Justin Scott, a probate attorney in New Jersey. And, to be honest, it can be overwhelming at times, and all that information can end up doing more harm than good, making already difficult decisions even more difficult.

If you have any questions about any of these rules, or if you are unsure whether or not there may be a conflict of interest, please come and speak with me or one of my colleagues. We would be happy to explain all of this to you in greater detail and clear up any confusion you may have. We know the road ahead will be difficult enough without adding more obstacles. We want to assist you in avoiding those roadblocks

As you are aware, dealing with the aftermath of a person’s death can be difficult. It would be extremely beneficial to be aware of, and at least have a basic understanding of, the pitfalls and unseen obstacles that can befall someone if they are not cautious, and we hope that this article has shed some light on the situation. Contact us today to speak with our experienced and ethical probate attorneys.

Why Do You Need A Living Trust And A Will?

Some things in life just go well together: Cereal and milk, peanut butter and jelly, movies and popcorn. But there’s another couple of things that go well together too—living trusts and wills. Now, if you know even a smidge about living trusts and wills, you might think that you would be just fine without a trust if you’ve already got a will—since they’re basically kind of the same thing. The truth is, however, that it’s a good idea indeed to have both if you don’t already.

“But why?” I hear you screaming at your computer screen. “Why do I actually need both?”

Living Trusts Never Include Every Single Thing You Own

The biggest reason why it’s important to have a will is that a living trust only covers all the stuff you’ve listed, in writing, in the trust. And almost no one transfers every single thing they own to the trust. I mean, I guess you could try, but if you’re like me, you have a lot of stuff. Doesn’t it just seem a lot simpler to transfer some of it and not all of it?

Even if you did somehow manage to get all that stuff of yours into a trust, there’s always a chance that you’ll get even more of it before you die, and that stuff isn’t going to be covered by your living trust because you didn’t have it included at the time you made the trust. Make sense?

A Will Can Do Things A Trust Cannot

To explain this in simpler, more cultural terms, think of a Living Trust like Robin and the Will is like Batman. Sure, Robin is great and whatnot. He can do a lot of cool things and he can hold his own, but Batman is on a completely another level. It’s the same thing with Wills and Living Trusts.

For example, if you have minor children, and you want someone to take care of them when either you or your spouse dies, you must use a will. You cannot use a living trust. Also, in a will, you can cancel any debts that you are owed, and that’s another thing that a living trust cannot do.

A Final Word From Justin Scott

Attorney Justin Scott sheds more light on the matter. “It can be nerve-wracking to try and think of if you’ve covered all your bases when planning for the future. It’s no question that something will inevitably get left out or you’ll forget this or that. And while you can most certainly create a will on your own, it can still be a bit confusing. If you’d like assistance with drawing up a will or living trust, or if you have questions about anything else, my team and I would be happy to assist you, and get you the help you need.”

How To Avoid Probate: Part 3

Welcome once again to our handy-dandy how-to guide for avoiding probate altogether. Please note that this is indeed the final part of the guide. If, however, you missed out on the first two sections, you can check out part 1 (here) or read part 2 (here). In the final section, we’ll discuss how you can go about getting around the probate process if you happen to have a small estate. If this applies to you, please read on!

Is The Estate Big Enough for Probate?

The truth is simple: if your estate is small enough, you might not even have to think about probate at all. Nearly every state now offers shortcuts, or in some cases, ways around probate altogether, for small estates.

Each state defines that term differently, so be sure and check the rules and regulations for your state. Also of note, because of the way these laws are written, some larger estates—most worth hundreds of thousands—are also eligible for special procedures that speed property to inheritors.

There are two basic shortcuts for small estates that we will discuss today.

Claiming Property with Affidavits

If the total amount of value for all of your stuff is below a certain number, anyone who inherits your personal property (that is, anything except for real estate) might be able to skip probate altogether. Please note, though, that the exact amount varies by state and can also vary quite a lot.

However, if an estate qualifies, any inheritor can make up a short document stating he or she is entitled by will or state law to a certain item of property. This paper (called an affidavit) is signed under oath. Then, when the institution or person holding the property (like a bank where the deceased had an account) receives the required documents (i.e. the affidavit and a signed copy of the death certificate), it can then release any monies or other property.

Simplified Court Procedures

The second option we’ll look at now is simplified court procedures. Again, these are defined by individual state laws and are a quicker, simpler version of the probate process. The probate court will still be involved, but it has far less control over settling an estate. In many states, these processes are even simple enough to handle without even getting counsel involved. As such, they save a lot of money as well as a lot of time.

Get help from an Experienced New Jersey Probate Attorney

Finally, let’s end with a quote from New Jersey probate attorney Justin Scott. He says, “We know that, while a lot of people do go through the probate process, there are also those who may not have the time or money to devote to such a lengthy—and in some cases costly—process. We want those people to understand that it’s okay if they choose to go another route. There are many different options open to them, and we can work together with them to decide on what is ultimately their best course of action.”

This concludes our How-to guide on avoiding probate.