Estate Planning: Do heirs need an attorney?
Estate planning

Estate Planning: Do heirs need an attorney?


Q: Does an heir of an estate or a trust need an attorney?

A: This is really a tough one, because there isn't really a yes or no answer. It all comes down to circumstance and the family dynamic. I also don't want to be in a position where I'm telling someone that they don't need an attorney.

Let me start by saying that, in the vast majority of the estate and trust administrations, beneficiaries are not represented by their own attorney. I'm not saying that's good or bad. I'm just saying that is the way it is.

Probate estates and trust administrations are, generally speaking, non-adversarial. The personal representative or trustee is a fiduciary and has obligations to both the estate/trust and to the beneficiaries themselves. Administrations aren't usually an us-against-them situation.

The fact that most administrations are generally non-adversarial probably explains why so few beneficiaries go through the expense to hire their own attorney. Most beneficiaries don't need an advocate.

When I was in law school, I clerked for Porter County attorney Ted Fitzgerald. I remember Ted asking me one day whether I wanted to be a trial lawyer or a transaction lawyer.

Up until that time, I didn't think there was a difference. However, after thinking about it, I knew that I wanted to help guide and counsel my clients through a situation and hopefully help them stay out of trouble rather than get them out of it later.

Ever since that day, I've described myself as a transaction lawyer. I also remember how thrilled I was the first time I ran into Ted in the courthouse and he called me counselor.

I view estate and trust administrations as transactions. I help the personal representative or trustee wrap up a loved one's affairs and carry out their instructions. I've never looked at a beneficiary as an adversary. My position has always been that I'm just there to help out.

Now, having said all that, there have been occasions over the course of my career where beneficiaries "lawyered up." However, even in those situations I never looked at opposing counsel as an adversary.

They were there to make sure that their client's rights were protected. Just like me, they wanted to make sure things went correctly.

Now, obviously there are situations when a beneficiary needs an attorney. Fights over a decedent's stuff occurs from time to time. In those situations, it's no longer a transaction, and everyone needs to protect themselves.

The need to protect oneself is usually pretty clear. I don't think that I have ever had a personal representative or trustee ask me why a beneficiary hired a lawyer. Everyone saw it coming.

I guess in the end, the answer to your question is "maybe." If a beneficiary "needs" an attorney to protect their rights or to give them peace of mind so that they can sleep at night they should hire one.

If not, rest assured, things will probably be OK anyway.

Christopher W. Yugo is an attorney in Crown Point. Chris’ Estate Planning Article appears online every Sunday at Address questions to Chris in care of The Times, 601 W. 45th Ave., Munster, IN 46321 or to Chris’ information is meant to be general in nature. Specific legal, tax, or insurance questions should be referred to your attorney, accountant, or estate-planning specialist.


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