Probate and wills can be a touchy subject for many people. It forces them to face their mortality, which isn’t the most pleasant thought for anyone. However, having plans in place beforehand can eliminate long and drawn-out court battles between members of your family and loved ones.
Having an attorney prepare a will as part of your estate plan can help to ensure that your legacy is distributed to the ones you want to share it with, rather than those who believe they’re entitled to a piece of it under the law. When you go to the trouble of executing a will, you do so with the peace of mind that your wishes will be carried out when the time comes. Unfortunately, sometimes problems can arise in the probate administration of an estate, and you may require professional legal solutions.
Be careful who you trust
The law requires specific steps for creating a valid last will and testament. One of those is choosing a personal representative, also known as an executor or executrix in some jurisdictions. This is the person who owes fiduciary duties to your beneficiaries. You are putting him or her in charge of carrying out your wishes set forth in your will. This person will be given complete control over all of your assets and personal property by the probate court.
Personal representatives are human and can make mistakes. This isn’t a job they’ve had training for, so they’ll need guidance from a probate attorney to make sure they’re carrying out their duties in a reasonably careful manner. An unethical personal representative may deliberate mismanage your estate for their own personal gain. This is where being very careful about who you choose to oversee your estate is the most important decision you’ll make.
An unethical or dishonest personal representative could:
- Poorly manage your estate’s assets
- Overpay or fail to pay your creditors
- Failing to timely file tax returns or not file them at all, incurring substantial penalties
- Deliver the wrong property to the wrong beneficiary
- Sell or gift an asset without proper authority
- Fail to properly maintain an accurate accounting
- Fail to collect outstanding debt owed to the estate
- Deplete the estate’s assets by making distributions to beneficiaries in lieu of paying creditors
- Make risky investments with estate assets causing a significant loss
- Improperly deplete estate assets for personal use
Choosing someone ill-equipped to handle the job can result in your estate being lost through recklessness, fraud, outright theft, or probate litigation.
Remedies for improper administration of a will
If a personal representative is found to have mismanaged a will, there are certain remedies that can be pursued in the probate court to reverse as much damage caused to the beneficiaries as possible.
- One possible solution to discovering that a personal representative isn’t performing his or her job is for a beneficiary to petition the probate court to remove that personal representative, in accordance with Tennessee Code § 35-15-706. A successor personal representative may be appointed instead.
- A lawsuit can also be filed against a personal representative for various causes of action stemming from a breach of his or her fiduciary duty. Personal representatives owe the beneficiaries of your estate several duties, including loyalty, impartiality, and to be a prudent investor. Failure to uphold any of these criteria that causes harm to those intended to benefit from your estate can become part of the basis for legal action. If you succeed, the personal representative may be required to turn over any remaining property and funds in his or her possession to the estate, or a judgment may be awarded to the beneficiaries.
Pursuing criminal charges against a personal representative who has engaged in theft of an estate is another way to seek redress for the damage caused. It may not result in the money or property being returned, but at least you may see some justice by way of a prison sentence.
Nothing is more devastating than losing a loved one. A close second is learning that your beloved family member entrusted his or her last wishes to someone who betrayed that trust by failing to carry out instructions in the will. If you find yourself in the position of having to contest a will or challenge the executor’s actions, your only chance to set things right is to seek legal help.
The caring probate attorneys at Wagner & Wagner, Attorneys at Law stand up for the rights of beneficiaries and their departed family members. Our compassionate attorneys possess the expansive qualifications necessary to obtain a just result for clients in Chattanooga and Cleveland, TN, and the surrounding areas. To schedule your free case evaluation in our Chattanooga office, call 423-756-7923, or reach out to us through our contact page.