An interested party can force an Executor, Agent or Trustee to file a Formal Accounting. Once submitted to the court each party receives a copy of the Formal Accounting. If the fiduciary is dishonest, they may file a misleading or confusing accounting. Interested parties may have their Accounting Lawyer file objections. Further, the Estate Litigation attorney may obtain permission to force discovery. In this way, the Estate Litigation Lawyer may secure bank records, subpoena evidence, depose the fiduciary and interview witnesses. Money usually leaves a trail.
If parties do not settle, the judge holds a hearing. Successful objections depend on evidence submitted by the rules rules of evidence and in a manner that allows the judge to render a decision in your favor. Assembling, organizing and presenting this evidence is a skill set learned over time, and not something that should be attempted by anyone who is not an Estate Litigation Lawyer. If the evidence is not presented correctly, the judge cannot find in your favor.
The judge listens to each side and then renders a decision. If the judge finds the fiduciary’s actions improperly reduced the estate, the judge may surcharge the fiduciary.
To obtain a full release of liability, an Agent under a Power of Attorney, an Executor or Administrator of an estate or a Trustee of a Trust must either be released by the beneficiaries or obtain a release from the court. If the beneficiaries do not sign an Informal Accounting and release, the fiduciary must file a Formal Accounting. This accounting must be served on the beneficiaries. The beneficiaries then have a right to have their Estate Litigation Attorney file objections to the accounting. By filing objections to the accounting, the beneficiary then obtains the right to appear in front of the judge to dispute what the agent, executor or trustee has done. The Estate Litigation Attorney can then perform discovery, such as witness depositions, subpoena documents and submit interrogatories. The Accounting Attorney presents this evidence to the judge using the rules of evidence.
The fiduciary must file the accounting in a particular manner following court-created rules. Creating the accounting, and reading and analyzing the accounting is a skill set learned after years of experience. If drafted and filed correctly by an Estate Litigation Attorney, many objections may be avoided and much money saved. A trusts and estates trained attorney can also work with a beneficiary to help explain the accounting and, if necessary, file objections to what the beneficiary finds objectionable. The objections must be filed in a specific manner and if done correctly the first time, will save the beneficiary time and money.
The beneficiary or other interested party objecting to a Formal Accounting pays the attorney, but the judge may order this fee paid from the estate or trust, or if the judge finds the fiduciary has acted badly, even from the agent, executor or trustee’s personal funds. The agent, executor or trustee may also hire an attorney. The estate pays this attorney, but if the judge finds that the agent, executor or trustee has acted badly, the judge may order the fiduciary to repay this fee.
The judge’s opinion will be final; you have one chance to present your case. You need an experienced Formal Accounting Attorney to state your case, present your evidence and protect your rights. If not, the opportunity is lost. If you are objecting to a Formal Accounting from an agent, executor or trustee or if you are an agent, executor or trustee responding to objections filed against your accounting a judge will hear your case. It is in your best interest to retain an estate litigation attorney with experience in accountings. Each court has different procedures and rules. The objections and the responses to the objections must be produced in a very precise manner using the rules of the court. Understanding the accounting procedures and the process by which the judge expects objections and responses to objections to be handled is a skill set learned only after many years of experience.
If you have any questions about Contesting and Objecting an Accounting or any other estate law topics, please contact us to schedule a free consultation .
For more than two decades Klenk Law has focused only on Estate Law. We’ve seen it all, and this experience allows us to explain complex Estate Law and Contesting and Objecting Accountings clearly and concisely. If you are involved in Probate Litigation, our experienced Probate Litigation Attorneys will make it easy for you to understand and provide top notch representation so you can make the best decisions.
Many firms assign Estate Litigation cases to their young lawyers or a general litigator. This is not cost effective. Being that Estate Litigation is what we do, our experience allows us to focus quickly on the issues that matter. By being focused, we arrive at the most cost efficient plan. We find the solution to your problem while the others are just warming up.
While some firms litigate, few of them have whole departments focused exclusively on estate matters. At Klenk Law, our Probate Litigators have the luxury of partnering with other lawyers from our Probate or Estate Planning Departments. The depth of experience we can focus on your case is truly impressive. Whatever issue you are facing, our team has the answer.
Our breadth of experience allows us to successfully represent beneficiaries taking on lazy trustees and executors. In the same way, we are equally skilled at protecting trustees and executors from ungrateful beneficiaries. Whether you are a fiduciary, agent, guardian or beneficiary, our skills will best represent your case.