<p>A friend’s mother passed away about 9 months ago. I’ll call my friend Sue to simply things, though that isn’t her real name. Her mother lived in NY and her sister lives in NY. Sue is in California. Sue’s sister was named as executor of the estate. After 9 months, Sue has yet to receive a copy of the trust that her mother had established - she has only been told by her sister that the trust exists and the assets are to be divided equally between Sue, her sister and her sister’s two children (though Sue’s adopted son is not included, Sue says she doesn’t care that her son wasn’t included). Sue has made many attempts to contact the attorney’s that are handling the estate in NY but they don’t respond to her letters or phone calls. Sue has asked her sister many times for a copy of the trust/will, but her sister tells her to contact the attorney in NY. Sue knows that in addition to the money her mother may have had there are 3 or 4 properties in NY that are part the estate - no one will give her any info on what is happening to the properties. </p>
<p>It seems to me that Sue needs to get her own attorney to lean on someone in NY to get her the information & protect her interest. I realize that it may take time to sort out the estate but doesn’t Sue have a right to a copy of the trust or will? And to get an accounting of the assets at the time of her mother’s death? Can a lawyer here in California be of help or will she need to find a lawyer in NY? Any suggestions on how to find a good attorney would also be appreciated. </p>
<p>note: part of this is just my personal rant as I’m tired of listening to Sue complain about not receiving any response from the NY attorney handling the estate. I feel like she’s been going in circles for 9 months and its past time for her to try another route.</p>
<p>Sue should have someone she knows in New York go to the probate court and get whatever has been filed there. Those are public records and it should be no problem to get copies. Have those copies mailed to her, and it’s a good place to start. Also have that person go to the New York equivalent of the Registry of Deeds, which will have the information about all the properties Mom may have owned. Sue may want to hire a real estate agent for that part.</p>
<p>Then Sue will have an idea of what’s going on, and will have the ability to speak with her sister in a more knowledgeable way. </p>
<p>She may also want to file an appearance in the probate court as an heir, which should entitle her to notice of new filings.</p>
<p>Agreed that Sue should be able to get a copy of what was filed with the court. Also, know that there may not be separate trust documents. Sometimes trusts are created by language within the will itself (my brother’s will was like that).</p>
<p>Does Sue know for sure that there was a will, by the way?</p>
<p>It is correct that Sue will need her own attorney. The attorney she has been calling has probably been hired by the executor to represent the estate, and does not represent her as an heir. Typically that attorney is doing what they are told to by the executor… so if the executor says don’t call back, the attorney won’t.</p>
<p>I am not an attorney, but have been a co-personal representative (personal representative is what they call executors these days) for a fairly complex estate for 5 years (real property in several states and countries involved, multiple heirs who are not happy with the will, etc.). Others may disagree, but I would say that getting an attorney in New York is best. Preferably in the jurisdiction where the will is filed or quite close. They will know the ins and outs, possibly know the judge, etc. My experience has been that an attorney who specializes in estates and trusts is best; they aren’t cheap, but they can help you a LOT. </p>
<p>I have found attorneys by asking my local attorney to research for me. They will typically start with Martindale listings, and possibly make some phone calls to try to find someone. That worked out pretty well for me the two times I found estate attorneys in other states through that method. In one case my attorney charged me, and in another they did not for this research. Would have been worth it either time.</p>
<p>If she has a lot of difficulty getting information and is concerned that the personal rep is not providing adequate info once she gets her own attorney involved, one option is to request from the court that the estate be “supervised” (the one I am involved in is). It means that the court gets regular reports on the status of the estate (and those are provided to all heirs as well). The court can get involved in decisions if they don’t like the reports they are receiving (but they have never done so in my case).</p>
<p>I agree with all the comments and suggestions made by prior posters. Laws vary from state-to-state … but in all the dozen or so family and friends with Estate situations similar to the OP’s, a lawyer local to the Estate was required. As Chedva and intparent pointed out, the place to start is with documents filed with the Probate Court. Those will help determine where the process needs to go next.</p>
<p>BTW, it’s been my experience that persons unfamiliar with Estate processes are generally unwilling to accept counsel on those processes. Tread carefully!!!</p>
<p>Thank you all for the information!! It is so helpful, she or I know nothing about wills and trusts and estates and she’s been beating her head against the wall for the past nine months. All this info will be so helpful + a couple of you have offered referrals to attorneys in NY. Sue has been in California for over 30 years so she really doesn’t have contacts in NY except her sister and her sisters children. Thank you, thank you!</p>
<p>Just one more comment, my estate attorneys (in two states) have been worth their weight in gold! I can see why people are reluctant to make the expenditure to start with, but over the past 5 years they have helped both legally and with my peace of mind. I have even considered going back to law school myself to become an estate and trust attorney – people need so much help with this particular area of our legal process, I think it would be a very satisfying area of law to work in. :)</p>
<p>Anyone want to comment on how useful to heirs it is to have a will? Mom won’t be with us much longer and has no will. She has assets, mostly land. She would not want anything complicated, just a statement that her kids get her assets. Should we push it?</p>
<p>My understanding (our office does some estate planning) is that when a person dies there is no longer any way to have them sign documents- checks for a checking account, sales or escrow or transfer docs for real estate etc.</p>
<p>Probate is technically a lawsuit to have the executor be appointed the ability to legally sign for the deceased’s assets and deal with whatever arises. Probate takes months and often a fee to an attorney,</p>
<p>With a living trust, the trustee has the authority to sign. Usually you are the trustee of your living trust with a successor named. So, my Dad is the trustee, when he dies, I become the trustee…no legal forms to file, no hassles with probate court, no fees. Simple.</p>
<p>treetopleaf - re: your questions about having a Will and the pros/cons of inviting outside lawyers into the deceased affairs (what? you thought Probate COURTS functioned without lawyers???) … a lot depends on the state in which the person died. That said, Estate matters are time-consuming enough when there is a Will. Without a Will the family will have no say in how the deceased’s property is conveyed. There are many other potential negative effects also … too many to list in one post.</p>
<p>Finally, here’s a cautionary tale for those convinced that Probate Courts are legally bound to follow the wishes of the decedent, even when there is a Will:</p>
<p>“how the deceased’s property is conveyed” - do you mean how things are split up?</p>
<p>I know nothing about this, as you can tell.</p>
<p>My nephew does have a friend (future lawyer once her kids get older is her plan) who works as an aid in a law office, one that does come recommended to us by my sister’s friend, so hopefully through them we can get something signed so we can maintain her property upon her death. We kids all get along really well; there should be no greed problems. Just lots of getting things straightened out problems :)</p>
<p>I think by conveyed, NH means transferred to the new owners.</p>
<p>If your relative puts all the land into a living trust then you have the simplest way for the beneficiaries to affect changes. You should know, though, that a living trust is not a forever document, they must by law be limited. At some time the property would need to be transferred to the beneficiaries. If you are going to sell the land later, no problem, if you will be keeping it, you need to have an ownership plan for later.</p>
<p>If ya’ll were going to keep it, say it was an apartment building and you wanted the rental income for years to come, you could do a family limited partnership, etc. but that begins to get more complicated.</p>
<p>Probate is costly, slow, and complex in some states, much simpler in others. Unfortunately for the OP’s friend New York has a reputation as one of the slow-and-costly states. But absolutely, as a named beneficiary of a New York decedent’s estate, she needs to have her own NY probate lawyer on the case. The lawyer retained by Sue’s sister legally CAN’T represent both Sue as personal representative and Sue as beneficiary; that sets up a conflict of interest. If Sue isn’t getting any information about the will and the trust, she needs a lawyer to represent her. I hate to say it, but the mere fact that the sister is not providing information is cause for concern.</p>
<p>As for living trusts, some people are under the mistaken assumption that this is a “magic bullet” that solves all problems by avoiding probate. Maybe, maybe not. I’d advise against a do-it-yourself trust; you need a professional to help you think through all the contingencies, and that means setting up the trust may be costly. Also, a trust avoids probate only if all the decedent’s assets are already in the trust at the time of death; that may require drawing up a lot of deeds and redoing bank accounts and other assets, and that may entail some cost. If any assets are left outside the trust you may end up in probate anyway. A living trust is sometimes a good idea, but a complicated estate is complicated business however you slice it. I’d say, get professinoal help.</p>
<p>Of course everyone’s situation is a little different (and state laws vary), but I just finished revising my will. Hadn’t done so since my divorce, and my kids are older so some of the info on custody if something happens is changed (I got ex-H to agree to the changes before doing them).</p>
<p>Essentially we created a “pour-over trust”. It is a revokable trust (so I can change my mind at any time) that has no assets in it right now. The trust documents describe how the trust is to be distributed (what % to each kid, how to cover their expenses before they reach the age I have designated for them to receive distributions, how to handle it if they are deceased, etc.). Then almost every asset I have (with a few exceptions) had their beneficiary changed so that if I die, the asset goes to the trust. We also created a will that describes a few things, but that also “pours over” things like personal possessions into the trust. What this accomplishes is to avoid probate for almost every asset, and gives control of the assets and the distribution directly to my trustee (also the same person I have named as my executor in my will). He is still bound by the distribution rules laid out in the trust. It just avoids delays and attorney fees.</p>
<p>An estate/trust attorney will still be required; there are tax implications within my state, for example, that likely would require their input.</p>
<p>I paid about $1,800 for this whole thing. I am doing all the beneficiary changes myself, though, not asking the attorney’s office to do anything. I also did a living will, and D1 did a living will and power of attorney, included in that cost.</p>
<p>My attorney advises that if I move to another state, I need to have an attorney in that state review the will and trust and make any necessary changes.</p>
<p>My understanding is that even if we missed something and the will does have to go to probate, it will be less expensive and onerous for the executor and heirs.</p>
<p>We used to have a complex custom trust, back when we thought we might have money someday Since we know that is not a huge issue, we did a legal zoom trust and did all the transitions of accounts & properties. But we had the old verbiage to review and consider to make sure we did what we intended. And it is easier for me, working in an office that handles that sort of thing means I am not starting from scratch. </p>
<p>I also handled this for my parents and it has worked well with one deceased…though the test in when the second dies! I don’t think my parents could have done it by themselves, they might have begun, but no doubt would have given up as it got complicated.</p>
Since we know that is not a huge issue, we did a legal zoom trust and did all the transitions of accounts & properties. But we had the old verbiage to review and consider to make sure we did what we intended. And it is easier for me, working in an office that handles that sort of thing means I am not starting from scratch. </p>