Everyone who creates an estate plan hopes that the settling of their estate will proceed smoothly and quickly. Unfortunately, though, litigation sometimes arises after you die. Whether it involves a challenge to your estate plan, or defending or prosecuting your rights in an unrelated matter, your estate may become a party to a civil suit. While you cannot prevent these complications from happening, you can take steps to strengthen your estate plan, beginning with the selection of your personal representative.
Personal representatives have a wide variety of duties. One such duty is the responsibility to protect the assets within the estate and to retrieve potential outstanding assets. This process may require the personal representative to defend the estate against challenges to the deceased’s will or trust or defend the estate in a civil lawsuit. The personal representative may also have to carry forward a civil lawsuit brought by the deceased or initiate a new suit if the deceased has a claim against another person or entity.
Typically, when one thinks about a litigation matter involving an estate, one thinks of cases like Beard v. Estate of Wenkman, where rival siblings battled over the validity of their late father’s will. Other times, though, estate litigation may involve pursuing a civil claim on behalf of the deceased. Robert Viola, for example, sued various entities for exposing him to asbestos dust, which led to his contraction of malignant mesothelioma, but he died only a few months after filing his suit. Due to his death, his personal representative took over the task of carrying the civil action forward on behalf of Viola’s estate.
Choosing the right personal representative is essential. The person you select should possess the necessary attributes to address all aspects of settling your estate, including handling any litigation that might arise. If litigation becomes necessary, your personal representative may need to engage in tasks such as retaining the appropriate attorney to handle your estate’s case. The personal representative you select should be comfortable with the prospect that, if these events occur, he or she will be in charge of managing these matters.
It is also vital that you discuss your choice with the person you prefer to serve in this role. A person you name as personal representative is not required to serve and may resign at any time, so it is extremely important that, as part of your estate planning process, you engage in a dialogue with your preferred choice and make certain he or she is comfortable with this task.
Estate planning involves making many choices, whether those choices involve the distribution of your assets or choosing individuals to fill roles such as the personal representative. Each decision is essential to the success of your plan. To obtain knowledgeable advice regarding your estate plan and the selection of your personal representative, consult a Madison estate planning attorney like the attorneys of Krause Donovan Estate Law Partners, LLC. They have the experience and ability to provide you with the information and advice you need to ensure your plan works the way you want.
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