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Common Estate Misunderstandings

People often wonder what they are entitled to see after a family member passes away or sometimes before, whether it is a power of attorney, living will, will, financial documents, etc.  So what are you entitled to and when?  The answer, like many legal answers is, it depends.  On what?  Well, is the person alive?  If so, what is his or her mental status?  If the person has passed away, who is in charge or potentially in charge?  What documents are you looking to see?

Because the answers depend on the unique facts, it is difficult to give a simple generic answer, but this article will provide a few answers that hopefully will point you in the right direction.

Prior to death, if a person is legally mentally capacitated still, that person can manage their own property/assets.  So, if you want information or documents, you have to go through him or her.  If they execute a power of attorney naming you as his or her attorney-in-fact, then you may be able to access the information or documents yourself.  If he or she named someone else as attorney-in-fact, you can also go through that person, if they are willing.  They are often not required to provide you with anything though even if you are a child or next of kin to the person.  The same is true for many health-related documents, like a health care surrogate designation or living will.  Once the person in question has lost their mental capacity, generally, you can only go through the attorney-in-fact or a guardian if one is appointed.  If a guardian is not appointed, then you can ask for one to be appointed, but you will likely have to remove the attorney-in-fact as part of the case.

If the person has passed away, you may be entitled to receive certain documents like inventories and accountings.  It often depends on if there is a probate case or a trust involved.  If the former, Florida Statutes and Probate Rules apply and if a Trust, you have to look at the statutes and rules, but also the Trust document itself.  If you are not named as a beneficiary or interest party in a Will or Trust, you may not be entitled to anything, even if you are a child of the deceased.

What about financial institutions, aren’t they supposed to inform me about funds?  Possibly, but again, probably only if you are a beneficiary or other interested party, such as a trustee or personal representative (a/k/a executor or executrix).  They may be able to at least inform you as to whether you are listed at all though.

So, what do you do if you want to know more about what is going on, before you start demanding everything under the sun, we suggest discussing the matter with an attorney.  An attorney can provide you with your options to see what you are really entitled to see.  If you have already made requests and you have been refused the information or documentation, then an attorney can likely tell you whether your requests were valid.  And if you believe someone has coerced or influenced the decisions of the person in question, you should seek out an attorney to see what your options are.  You may have a cause of action against someone for undue influence, tortious interference with inheritance, lack of mental capacity, or perhaps others.

If you need assistance with an estate planning issue or similar matter, feel free to contact Mason Williams.

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