I was named as a beneficiary in someone's will. Now what?
A family member tells you they’ve named you as a beneficiary in their will. What does that mean, and what, if anything, do you need to do?
Well, if the person is still alive, there’s nothing to do now. A will can’t be offered for probate until the person who made it (called the “testator”) dies. Remember, too, that the testator is free to write another will at any time, which may change what you’d be entitled to or exclude you altogether. And, of course, their circumstances may change such that they have a smaller estate to give. Until the testator dies and their will is admitted to probate, you have no legal interest in their property and shouldn’t make plans around it.
After the testator passes away, someone, usually the person nominated in the will to be the executor, will file an application to admit the will to probate and then schedule a court hearing to “prove up” the will and obtain Letters Testamentary (the “badge” that shows that the executor has authority to act on the estate’s behalf).
When the original will (not a copy) is timely offered for probate (that is, within 4 years of the testator’s death), there’s no obligation to give notice to either the beneficiaries named in the will or the family members of the testator before the prove-up hearing. In fact, the executor has 60 days from the date they qualify as executor to give notice to beneficiaries. So, if you are named as a beneficiary and are not also the applicant for probate it may be 60 days after the will is admitted to probate before you know about it, and a will can be timely offered for probate up to 4 years after death.
Do you need a lawyer to represent you as a beneficiary? Not necessarily, but sometimes it may be appropriate. If the estate is solvent, the executor is being transparent and efficient, and all distributees agree about how property should be divided, you may not need an attorney to ensure your interests are protected. This is often the case in what I refer to as the “boring happy family” situation—in my world, a boring family is a good thing!
When might a beneficiary need a lawyer? Here are a few examples:
Where’s the will? The person in possession of the will hasn’t delivered (“surrendered,” in legalese) the original will to the county clerk’s office to enable probate. There’s no requirement to file an application for probate right away but the law does say that the person in possession of the original will “shall” (legalese for “must”) surrender it to the clerk’s office after death. In other words, you don’t have to offer it for probate just because you’re in possession but you can’t sit on it and prevent someone else from being able to.
I object! The will has been admitted to probate but you want to contest its validity—for example, you believe the will was signed when the testator lacked capacity, or the testator was unduly influenced to write this new will. This would make sense if you came out better under a previous will or in the absence of a will.
Where’s the stuff? What’s taking so long? You don’t dispute the validity of the probated will but believe the executor is administering it unfairly or inefficiently. Wills often give executors a great deal of discretion and they are not required to distribute right away, but the executor is obligated to manage the estate’s property the way a reasonable person would manage their own and to exercise reasonable due diligence. For example, if the estate includes a house which the executor has not yet deeded over to the beneficiary(ies), the executor should maintain insurance on the house, and failure to do so would be grounds for beneficiary complaint.
Hello? Anybody there? You aren’t getting enough information from the executor to know what’s going on. Maybe everything is going exactly as it should be, but you don’t have any information.
I’ve looked at these issues from the beneficiary perspective so far in this post, but it’s easy to see the guidance on the flip side of that coin for the executor, too. The executor isn’t obligated to keep beneficiaries updated on every minor detail (and may reasonably choose not to invite backseat drivers), but I encourage executor clients to be reasonably forthcoming with beneficiaries and keep them in the loop. It’s been my experience that an ounce of prevention is worth a pound of cure, and that proactively offering information to beneficiaries is a good way to prevent miscommunications and mistrust.