Dave Frees: The third mistake is the failure to comply with state probate requirements.
Probate requirements, again in Pennsylvania are not terribly onerous, they are pretty simple.
For example, when you go over and get sworn in as the executor, it is a requirement under Pennsylvania law that you give everybody that is named in the will a copy of the will or at least notify them that it is in probate. I give them a copy as a courtesy because they can go to the court and get it, but I think if you just say to people “If you want a copy go get it.”, you come off as kind of rude. So in the interest of keeping family peace and being cooperative, I usually give people a copy of the will.
And then once you have notified everybody, you’re required to then file a certification with the court saying that you have notified everybody. Now if you have legal counsel they will do all of that for you. That will be part of what they do and it doesn’t add too much cost and they make sure they do it the right way. That is important, because if you don not do that they, you can sustain a liability later. There are other things, for example, if someone has passed away who would have been entitled to inherit under an intestate law then, their heirs who would be entitled would have to get notice.
If someone’s been disinherited, a child has been disinherited under a will, they have to get notice. So, who gets notice is not often as a simple question as it first appears, and you want to make sure that that’s taken care of, because if you don’t do it, you can get into some serious trouble. Because people have the right to challenge the will and you can understand this, if you were a child and your parent did not include you in the will, but included your brother and sister, a question naturally arises. Did my parents mean to omit me or was it a mistake by them or the lawyer drafting? So, there’s a whole process in Pennsylvania, just to make sure everybody who is supposed to know about this will does know about the will
There are status reports and things you have to file relatively minimal, relatively inexpensive, relatively simple, just make sure you do them.
Interviewer: Dave, we had a person in here last week that had a family member who is a beneficiary of a will, but it was probated in New York State,
Dave Frees: Yes.
Interviewer: Now they did as you indicate receive technical notice that they are a party at interest, but this individual says it’s been over a year and a half ago. Are there any requirements for the executor to keep the beneficiaries posted as to activities?
Dave Frees: That is a great question, and it varies from state to state, so I cannot tell you in New York, however a year and a half does seem like a long time. In Pennsylvania, at the outset, we do say to the beneficiaries that, we will be in touch, and that it is a lengthy process, and we explain that it will be a long time. But this is a two edged sword. We do not want the beneficiaries to feel like they are not being kept informed, at the same time, it does cost time and money and energy of the executor and maybe the accountants, and counsel to be in communication with and advising beneficiaries all the time.
Especially if nothing in particular is happening that affects their rights. In other words, if the estate administration is going along normally, you do not want to add costs by having constant meetings and communications. However, it is not a bad idea, and we tell our executors, we’re happy to have you pay us to be in more regular contact with the beneficiaries, but it isn’t a bad idea for you, Mr. & Mrs. Executor, to have more frequent contact with the beneficiary, even if it’s not required by Pennsylvania law. Pennsylvania law does require that status reports be filed pretty regularly, just of telling the court whether or not you are done with the estate.
Dave Frees: And those reports are a matter of public record a beneficiary can get to them, but our advice to people is to stay in touch with the beneficiaries so the beneficiary is not worried about something that, frankly, is just fine. So it is a great question. And I would say that regardless of whether your state requires it or not, set up a system of being in relatively regular contact with the beneficiaries, especially also, at least at the outset. Give them information about the things that are going to affect their income taxes. We sent a big notice out to everybody at the start saying this may, this or that may affect your income taxes be sure to check up on it.
David M. Frees III Esq.
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