How does one find out who the executor of a will is ?

Dear Len & Rosie,

My wife’s father passed away recently and she and her siblings are not on best terms. They would like to see if there was a will but don’t know how to locate the executor. Her father had told her it was someone outside the family. How does one find out who the executor of a will is, and for that matter how does the executor find out someone has died?

Marco

Dear Marco,

Our first inclination was to respond with simple “How would we know?” You’re looking for a needle in a hay stack. Your father-in-law’s will, assuming he made one, could be anywhere. He could have named anybody as executor, but it’s more likely than not that he named one of his children, or maybe one of his friends. Ask his friends, if you know who they are.

It is also possible that your friend named his lawyer as executor, but this is not very likely. Attorney fees in probate are fairly lucrative. A lawyer for a $500,000 estate earns $13,000 in statutory lawyer fees, the same as the executor. But if the lawyer also serves as executor, he or she gets paid only once. Double dipping is not allowed. Most attorneys decline to serve as executors for the simple economic reason that there’s nothing in it for them.

You also touched on the problem of an executor learning of the death. If the executor isn’t close to your father-in-law, how’s he or she going to know? Consider that your father-in-law’s executor may not actually know that he or she is named as executor in the will. Did your father-in-law even inform this person? For all we know, your father-in-law’s will may be gathering dust in an attorney’s filing cabinet.

You can check with your county’s local Bar Association. They can send an email to their trusts and estates section members to see if any of them have the will.  Otherwise, your family will have to undertake a scavenger hunt, sorting through belongings to see if there’s will lying around somewhere.

If there’s no will, then don’t worry so much. The estate will be divided equally among the children in probate. Any of the children may petition the court to seek appointment as Administrator of the estate. If everyone is cooperative, it’ll be easy.

Many people want to keep their estate plans confidential, but they should not be too secretive. Some of you may go so far as to make extra copies of your wills and trusts and pass them out to your children. If you don’t want to do that - if you wish to protect your privacy, then just give your children or other beneficiaries your attorney’s business card with a note telling them to contact the attorney upon your death or incapacity.

Len & Rosie

Trust Amendments and undue influence

Dear Len & Rosie,

My deceased mother was in the care of my niece who was also trustee of my mother’s trust. My mother modified the trust to give my niece her home, which is worth at least one fifth of the estate. At the time that this was signed my mother was in Hospice and was being given morphine. I think there was undue influence and manipulation. The trust has a no-contest clause and a lawyer my brother consulted with said that the risk is to great for the return. My share is one-fifth of the estate, what is your opinion?

Donald

Dear Donald,

You may have a valid undue influence claim, or even a claim that the trust amendment is invalid due to a lack of capacity on the part of your mother. An undue influence claim rests on a three legged stool consisting of a confidential relationship (your mother trusted and relied on her granddaughter), active procurement (your niece got your mother to amend the trust, hired the lawyer, etc.) and unjust enrichment (she wound up with more than what she would have otherwise). If all three elements of undue influence are met, the burden of proof will shift to your niece to show that she was not really up to no good. You may also have a lack of capacity claim if you can show that your mother was too medicated to understand what she was doing.

The problem, as you have already learned, is the trust’s no-contest clause. No-contest clauses are essentially a “take it or leave it” proposition. If you challenge the validity of your mother’s trust in an attempt to get more than what the trust says, you’re disinherited, but only if you lose. If you win, then the amendment is invalid and the trust goes back to what it said before your mother changed it.

No-contest clauses were so powerful that there was an ongoing debate as to whether or not to allow them. The debate ended last year. As of January 1, 2010, the Legislature updated California’s no-contest clause law, Probate Code sections 21310-21315. Now, filing a contest won’t disinherit you if the judge determines that you had probable cause. In your case means it’s not a contest if, at the time you file your petition, the facts, as known to you, would lead a reasonable person to believe there’s a reasonable likelihood that you’ll win. The effect of the new law is that it leaves it up to the judge to decide whether or not to disinherit you if you contest the trust amendment. There are no jury trials in the Probate Court.

Another point in your favor is that no-contest clauses are strictly construed by the courts. Unless the no-contest clause says that it applies to trust amendments, or the amendment included a no-contest clause of its own, you should be OK.

The other problem with your case may have depends on who did the legal work. If an estate planning attorney met with your mother and prepared the amendment, then he or she will be a neutral witness who will be available to testify as to your mother’s mental capacity and her desires. Your mother wouldn’t be the first dying woman to leave something to a grandchild who helped her live out her last days at home.

What you should do is to get a second opinion from a trusts and estates attorney who actually has experience litigating cases.

Len & Rosie