Monthly Archives: July 2015

How do you know whether someone has authority to act on behalf of an estate? Suppose the following scenario: You own a jewelry business in Fallon, Nevada. A customer orders an expensive ring and pays for it up front. She dies shortly thereafter, prior to delivery of the ring she purchased. The customer is owed a refund. A few weeks later a young man shows up at your store and says he is the customer’s son and he wants to collect the refund. He shows you a copy of a will purportedly signed by the customer that leaves everything to him. The will states that the son is to be the executor. It expressly disinherits the customer’s other children. The son offers nothing else to support his request that you issue the refund to him personally.

What if you give the money to the son and later find out that the will was invalid, the customer’s daughter is appointed personal representative of the estate, which proceeds by intestate succession because no valid will is ever found? What if the son was actually raised by his father and step mother and had been adopted by his step mother? Would payment of the money to the son discharge the jewelry store’s obligation to refund the customer?

Nevada law provides for procedures by which a will is presented and admitted to probate and an executor or personal representative is appointed to administer the estate. A will by itself is not adequate to support a request for property belonging to the deceased. Why not?

First, because the will may not be valid. It may not have been properly witnessed. It may not be the last will and testament; it may have been revoked by a later will. It may be phony altogether. It may be real, but the product of undue influence or incapacity. By filing a petition in the county court where the deceased resided and giving notice to all interested parties, these issues may be raised and adjudicated. Only after the court has examined the will for validity and all interested parties have had the opportunity to raise any issues that may exist does a court admit a will to probate.

Second, perhaps the will is valid but the person presenting it is not the proper representative of the estate. The fact that the person is named in the will to be the personal representative does not mean he is qualified or has been appointed. Sometimes the person named in the will to act in this role will not be appointed by virtue of having been convicted of a felony, or because he has a conflict of interest or is improvident. Even if the person qualifies, he must actually be appointed to act before he has authority to collect debts owed to the Estate.

How does someone demonstrate he or she is the personal representative of an estate? In an estate where a will is admitted to probate, a personal representative receives letters testamentary. The letters testamentary demonstrate the authority to act on behalf of an estate. This is a short document that is issued by the court and contains an oath signed by the personal representative. It should state any restrictions on the authority granted on the front page. It should also be certified by the court, meaning it has the court’s seal and a stamped statement on the back verifying that the letters are both genuine and current.

Third, even if the will is valid, the decedent may owe money to creditors. Numerous costs must be paid before beneficiaries or heirs receive a share of an estate. These include costs of administration of the estate, costs associated with the decedent’s final illness and with burial, and creditors’ claims. Following proper court procedures ensures that these costs are properly paid before any distribution is made to beneficiaries or heirs.

So—what should the jewelry store do? Without evidence that the son has authority to collect the money on behalf of the estate, such as letters testamentary showing he has been appointed personal representative of the estate, the store should not give him the refund. Payment to the son will not satisfy the obligation to refund the money to the customer; only the customer’s personal representative has authority to collect the money. The store owner should ask the son for current, certified letters testamentary. In the alternative, if the estate is small, the son may furnish what is called a small estate affidavit—this option will be the subject of Part II of this blog post.

How might this have played out if the store did not follow the sage advice contained in this blog? The store cut a check payable for the full amount to the son. Thereafter, the daughter petitioned for appointment as the personal representative of the estate. A will similar to the one presented to the store was presented for probate by another relative, but it was never admitted to probate because it was invalid on its face for defects in the witnesses’ signatures. The estate proceeded according to intestacy laws and the son was not entitled to inherit at all—because he had been adopted by his step-mother, and adoption severed the natural right to inherit from his biological mother. The personal representative sued the store on behalf of the estate for a refund.

If you are presented with a question about whether someone has proper authority, the best course of action is to consult with a qualified probate attorney before taking action.