Dear Quentin,
A friend died suddenly six months ago. He told my husband and me that he didn’t want to leave anything to his only surviving relative, his sister. She has no husband or children. A person close to the situation told Us she is contesting the will. In the probate filing, which is in the public domain, he is listed as an “interested person.” There is also a personal representative. They are represented by the same lawyer. That doesn’t sound right.
What do you think?
Read more from MarketWatch
Trying to protect my friend’s will
Related: My brother is the trustee of our parents’ $10 million estate. He has threatened to dry up the land. What happens now?
Only a person with legal standing – an executor, heir, creditor or beneficiary, for example – can usually file a petition in such a case. – Marketwatch illustration
dear friend,
Having your friend’s sister and the “personal representative”—presumably, the executor of the will who referred to your friend’s wishes in his will—share the same attorney would only create a conflict of interest for the attorney in question if the sister filed a lawsuit to contest the will. If that happens, I assume the lawyer will refuse to take the sister’s case.
Only a person with legal standing – an executor, heir, creditor or beneficiary, for example – can usually file a petition in such a case. A friend of the deceased, in most cases, has no standing to complain about an attorney conflict. Courts expect the affected client, not a third party, to raise potential ethical issues.
A conflict of interest only arises if the sister formally takes a stand against the estate in a formal will or otherwise. A lawyer will be required to represent one of the parties or possibly withdraw entirely. Until that happens, joint representation alone is not unfair.
“When an executor or administrator has a personal interest in the estate, such as being a beneficiary, it can create a conflict of interest that can make it difficult for them to act fairly,” says GP Schoemakers, a Houston-based law firm. Having heirs and beneficiaries does not necessarily mean that the executor must be removed. However, mismanagement of assets or failure to fulfill duties can be considered problematic.
A will can usually be contested on these grounds: lack of testamentary capacity, undue influence from a family member, and improper execution. The latter is often the easiest and most common way a will is fought and/or overturned. A person will often state in this situation that they want a child or sibling to inherit, or alternatively, leave them a small amount, or they may say that anyone who tries to contest the will should be automatically barred from inheriting.
Statute of Limitations
There are limitations to competing at will. The sister should take immediate action and hire a trust-estate attorney. In California, for example, those deadlines are particularly short and, experts say, strictly enforced. A will contest must be filed 120 days after the will is admitted to probate or 60 days after notice of the court order accepting the will by the contesting party. If the will has not yet been entered into probate, your friend’s sister may object, but once the probate order is entered, statutory time limits apply.
All that said, here’s the harsh truth: Desire is very hard to fight, and the burden of proof is on your friend’s sister. Sometimes, these third parties hope to slow down the process and hope that the estate or right/legal heir will settle to move forward. I have received several letters where the case seems stronger than you describe; A reader wrote that her millionaire uncle’s nursing home forced her to change her will and sell her house. That seemed like a clear breach of ethics and fiduciary duty.
Lack of testamentary capacity is a relatively common reason that can make a will vulnerable to challenge, and leave it open to undue influence, pressure or fraud, at least in the eyes of the courts. “Unlike other grounds for challenging a will, capacity disputes often involve deeply personal family dynamics, medical testimony and complex legal parameters that can determine the outcome of estate planning,” says the Casiano Law Firm, which has offices in San Diego.
Many states also grant a surviving spouse a minimum “elective” share—that is, the right to receive a share of the deceased spouse’s estate. This helps to avoid complete distortion of the surviving spouse. Some people can try to prevent a spouse’s elective-partnership rights by transferring assets into an irrevocable trust, but they usually have to survive a look-back period to make such a move. Obviously, that doesn’t apply to your friend, because he died without a spouse.
But your friend’s sister has her work cut out for her — and to pay her own attorney’s fees.
Related: My elderly uncle’s nursing home forced him to change his will and sell his house. She was worth crores. Can they get away with it?
Previous columns by Quentin Fottrell:
‘I’m in a financial mess’: My income was cut in half. Should I sell my $600K home and ditch my 2.9% mortgage rate?
I found an out-of-state buyer for my grandmother’s classic car. He wants me to cash the check. Is this a financial scam?
‘I’m in California and plan to live here’: I’m 61, lost my job and living off my $425K IRA. I have $650K equity in my home. Do I sell?
My son’s credit-card company will write off $10K on a $25K loan. Should he admit or declare bankruptcy?
