Beneficiaries under a will have certain rights and protections under the law. The grant of probate or administration provides some protection to beneficiaries or next of kin. Subject to the family provision sections of the Succession of Family Provision Orders, they can be sure that they are the only people who will receive the property of the deceased person. If someone disputes the claim by producing another will, for example, the only way that person can receive any of the estate is to apply to the court to revoke the grant of probate (or letters of administration). If the deceased left gifts of money, assets may have to be sold to obtain the money. If the executor does not act diligently, the beneficiaries may complain to the Supreme Court. This is the only right a beneficiary has before distribution.
A beneficiary does not own the property until the executor distributes the estate. Before distribution, the executor is regarded as the owner of the assets in so far as the executor holds the estate in trust for the beneficiaries. Until the estate is distributed, surviving members of the family can sometimes be left without any access to family funds. This could happen where all the family assets have been in the deceased’s name. This causes a particular difficulty if the major beneficiary is a spouse who has no other source of income. (The same difficulty will arise if the deceased did not leave a will.) In such cases, the spouse should immediately contact Centre link to check their eligibility for a pension or allowance. Another option may be to seek a loan, using the estate as security.
Legal actions taken by or against a person may (with some exceptions) continue after their death (Law Reform (Miscellaneous Provisions). Unresolved legal actions will pass to the estate. If the estate is sued and loses the case, the beneficiaries could be left with nothing. If the value of the estate is not sufficient to pay off debts, the debts will die with the person, unless they were held jointly with someone (for example a mortgage on a property), or guaranteed by someone else. In these situations, the debts will automatically pass to the surviving co-owner or guarantor. Funeral expenses must be paid before any assets of the deceased’s estate can be distributed to beneficiaries. The person who orders the funeral is responsible for paying the account but is entitled to reimbursement from the estate ahead of other creditors. During a person’s lifetime, her will is private; she determines who views the document. After she dies, the will becomes public. The executor files the document with the probate court and notifies all beneficiaries. At that point, anyone may inspect the will. To determine whether you are a beneficiary in a family member’s will, review the will at the courthouse or contact the executor.
Review the Will
• Locate the court with probate jurisdiction over your relative’s will. In most cases, this is the court in the county in which she lived at the end of her lifetime, information you can get from the obituary or death certificate. Telephone the probate court in that county and ask whether the probate is pending there. If it is not, call probate courts in other counties in which the testator kept a residence.
• Visit the probate court and ask to see your relative’s probate file. In some countries, one office handles all civil court filing including probate, while other countries maintain a family law section to manage probate files. Give the clerk identifying information like your relative’s name and date of death and if possible the probate number.
• Review the probate file. Look in the early filings for a copy of the last will and testament, which is often appended to the petition for probate. Either read the will to see if you are a beneficiary, or ask the clerk to make a copy of the will to review later. Expect to pay a small copy fee.
• Write or call the will executor, if it is not convenient to visit the probate court. The executor is the person appointed by the court to administer the will through probate. Ask family members for the name and address or phone number of the executor.
• Call the probate court to obtain the name and phone number of the executor, if you cannot obtain it from family members.
• Ask the executor of the will whether you are a beneficiary in your relative’s will. Ask for a copy of the will so you can verify the information he provided.
Many people establish a revocable living trust, which governs all the assets that are titled in the trust. For example, you could title bank accounts, investment accounts, and real estate in the trust. You are the trustee and control the assets while alive and healthy. The trust document names a successor trustee so if you become incapacitated or die, the successor trustee can easily take over without a lot of administrative hassle. It can take years to settle a decedent’s estate through probate, and the executor usually can’t transfer any of the decedent’s assets to his beneficiaries until she has addressed and resolved many other issues. This means that if you intend that your spouse should have access to your checking account after your death, she can’t access the money unless you title the account in a way that avoids probate. Otherwise, it belongs to your estate until your executor settles and closes it, and that could be a long time.
Types of Beneficiaries
Technically, a beneficiary is anyone or any entity who receives property from you after your death. This commonly occurs when property conveys through a last will and testament. You might leave all your property to a group of individuals, such as your children, or you might leave specified items to each person. They’re all your beneficiaries under the terms of your will. Life insurance policies and retirement accounts also have beneficiaries. You can name an individual, such as your spouse, or you can name your estate as your beneficiary in your contracts with these companies and financial institutions. They’ll receive these assets when you die.
A transfer-on-death account also has a beneficiary, because it transfers to someone when you die. A transfer-on-death account is one set up by arrangement with your banking institution to pay the balance to someone named by you at the time of your death. If you want to leave your spouse your checking account, you can either bequeath it to her in your will, or you can name her as the beneficiary of your transfer-on-death account. Another way of transferring such a bank account is to use the word “or” when naming the account owners.
The greatest difference between a will beneficiary and a transfer-on-death beneficiary is that transfer-on-death beneficiaries can reach the asset immediately when you die. Transfer-on-death accounts do not have to pass through probate. They’re not part of your probate estate, because they don’t require the probate process to legally transfer title or ownership. If you bequeath the account in your will, your beneficiary can’t access the money until your executor settles your estate and closes probate. Worse, if you leave more debts than assets, your beneficiary may never see the money at all. Your executor must first use all the funds that are part of your probate estate to satisfy your creditors. Your beneficiary receives whatever money remains, if any. By law, contracts supersede the terms of your will. Therefore, the beneficiary of your transfer-on-death account receives that money, even if you state in your will that you’re leaving the account to someone else. The same holds true for all your beneficiaries by contract. If you name your spouse as the beneficiary of your life insurance policy, but state in your will that your son receives the death benefits from that policy, your spouse receives the proceeds, regardless of what your will says.
Beneficiary as an Executor
People often ask whether an Executor can be one of the Beneficiaries named in the Will. The answer is yes, it’s perfectly normal (and perfectly legal) for your Executors and Beneficiaries to be the same people. In fact, this is a common approach, as it’s a good idea to ask someone you know and trust to be an Executor. It’s therefore very likely that you will want to name at least one of your Beneficiaries, and more often than not this will be your main Beneficiary. On the other hand, it might be that your Executor is not named as a Beneficiary. One example might be that you want your children to inherit everything, but you would like your extremely competent friend to act as an independent Executor. Again, this is acceptable. What a Beneficiary should not do, however, is act as the witness to your Will nor should the Beneficiary’s spouse (or civil partner). Whilst this does not invalidate your Will, it means that the witness will no longer be entitled to receive their inheritance anymore. You should to sign the Will in front of two independent witnesses. These witnesses will then need to sign the Will (witness it) in front of you. Wherever you are on your path towards financial independence, it’s important to think about what would happen to your financial accounts if you unexpectedly passed away. It seems like a morbid thought, but planning for the well-being of your family is essential. Even if you don’t yet have a spouse or children, thinking ahead financially is still important. It could smooth the way for any friends or extended family members who will deal with your affairs, should you die. Obviously, this process involves creating the proper wills and trusts. But one simpler step could help your heirs avoid some problems: designating beneficiaries.
Even if all of your financial assets are properly distributed in your will, your heirs may get tied up in probate dealing with specific financial accounts unless you designate beneficiaries. The good thing is that you can easily add beneficiaries to most accounts, by-passing the harrowing (and potentially expensive) probate process. The beneficiaries designated on your account will only need some basic paperwork to receive money left in that account following your death.
Changing the Beneficiaries
One thing to keep in mind is that you’ll need to keep your beneficiaries up to date. Any major life event, such as a marriage or divorce, or the birth or death of a child, means you need to look over your account beneficiaries to make sure they’re still accurate. Also be sure that your account beneficiaries are listed in the appropriate order. This is important if you, for instance, want to account to pass first to your spouse but then to your child if your spouse has also passed away. When you’re changing the beneficiaries on your accounts, be sure to also change those beneficiaries in your will so that they match. Mismatches between your will and your account beneficiaries can create major hang-ups for your heirs. Whenever you update one, double check the other to ensure that it’s correct.
Beneficiaries usually want to know how much money they are going to receive or be able to identify their interest in an estate. In some cases, they may want information in relation to the overall assets and liabilities of the estate. Most of these enquiries arise from a concern about the manner in which an estate is being administered and uncooperative or secretive behavior. It is natural human nature to be inquisitive and/or mistrustful when information is withheld from us! Common complaints include:
• The beneficiary has not been provided with a copy of the Will and does not know what they are entitled to; and
• The beneficiary is not being provided with information in relation to the asset and liability position of the estate and is being kept in the dark when it comes to information in relation to the estate and its administration.
Executor’s fiduciary obligation to beneficiaries
When entering into any discussion about the rights of beneficiaries in estates, a useful starting point is the nature of the relationship between beneficiaries and executors. An executor stands in a fiduciary relationship to all beneficiaries of the estate. Fiduciary simply means a relationship of trust. This relationship is central to the rights of beneficiaries and the obligations of executors in estates. The executor has been entrusted with the assets of the estate and the power to administer the estate for the benefit of the beneficiaries of the estate. The executor must therefore discharge his or her duties with due care and loyalty to the beneficiaries.
Further rights of beneficiaries
Beneficiaries have further rights in estates including:
• The right to be informed of the expected date of distribution and any delay that may be occasioned;
• Where the beneficiaries are due to receive a legacy, to receive that legacy within 12 months of the deceased’s death or if paid outside that period, to be paid their legacy together with interest as prescribed by the legislation; and
• To be advised of any litigation against the estate that may affect their entitlement under the Will or intestacy.
Beneficiary Of A Will Lawyer Free Consultation
When you need to find out if you are a beneficiary of a will, or if you need to plan an estate or file for probate, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
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84088 United States
Telephone: (801) 676-5506
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