Estate and Inheritance Dispute Attorneys
Trust, probate and estate controversy attorneys for heirs, beneficiaries, guardians, trustees and personal representatives in trust, probate and inheritance disputes.
See Related Article: Estate Controversy:
Types and Causes
There is no shortage of
issues ranging from bad
documents and sibling rivalries to alleged breaches of fiduciary duty that can
give rise to inheritance disputes and other legal battles over who should get
what when a loved one dies.
One of the biggest obstacles
to effective estate planning is the misplaced hope that, when the parent or
grandparent passes away, “everything will work out,” and family squabbles and
relatives suing relatives “won’t
happen in our family.”
In too many cases, that is only wishful thinking. As
America progresses through the largest intergenerational transfer of wealth in
history, there is arguably more at stake financially in the death of a parent or
grandparent, or in managing the affairs of an incapacitated or vulnerable adult, than ever before.
While the positive side of estate planning remains
Hoopes Adams & Scharber's primary focus, we are
experiencing a growing demand for legal representation involving:
adult children whose
inheritance is threatened by bad planning on the part of their parents,
disputes among siblings and other heirs,
contested guardianships and conservatorships stemming from the inability of an incapacitated
person to manage their affairs, and
allegations of breaches of fiduciary duty by
representatives, successor trustees, guardians and conservators.
Breaches of Fiduciary Duty
Increasingly, Hoopes Adams & Scharber is asked to represent personal representatives,
trustees, guardians and conservators who are alleged to have breached the
fiduciary duty they owe to heirs, beneficiaries and wards.
keeping trust and personal assets separate; not using trust assets for his/her
own benefit; showing no favoritism among beneficiaries; investing trust or
estate assets in a conservative, low-risk manner; and keeping accurate records,
filing tax returns and reporting to the beneficiaries as the law or the trust
requires. (For more on this topic, see “Avoiding
Personal Liability in Acting as a Trustee or Personal Representative.”)
We also represent parties who
have legitimate claims against fiduciaries who appear to have violated their
Causes of Estate Disputes
Failure to Plan.
Perhaps the most common stimulus for estate litigation was the decedent’s
failure to provide valid instructions for how their property was to be managed
and distributed upon their death. In the absence of a properly draft and
executed Will or Trust, dying “intestate” (i.e., without a Will or Trust)
creates a potential free-for-all in which valid and invalid claims must be
settled by the courts.
Failure to Keep the Plan
Up to Date. Estate planning should not be viewed as a one-time event that,
once “completed,” need never be thought of again. Laws, financial situations,
family makeup, the nature of the estate’s assets, and states of residence are
among the many fluid factors that can lay waste to a Will or Trust that you may
have mistakenly thought was over and done with.
Joining the venerable hand-written, non-witnessed Will as a cause of estate
controversy is the advent of easy-to-use downloadable Will and Trust forms.
While such forms might technically meet the requirements of the relevant state(s),
they do not offer the thoughtful, strategic insight that can be gained only from
an experienced estate planning professional. Moreover, the failure to properly
execute, witness and/or notarize these “DIY” estate plans often leads to them
being no more useful than kindling for the fire.
Lack of Capacity. That a trustmaker or testator lacked the mental capacity to make a Will or create a
Trust is a common complaint. This can be a difficult argument to win, as mere
feebleness of the body or mental weakness does not rebut the presumption of
competence. Also, the moment at which testamentary capacity is to be tested is
the moment of the execution of the document.
Fraud, Duress and Undue
Influence. This is perhaps the most frequent basis for blocking probate of a
Will or enforcement of a Trust. It can also result in partial invalidity if the
remainder of the document is not invalid for other reasons. Simply stated, it is
the substitution of another person's will for that of the testator or trustmaker.
Lack of Formalities. A Will
in particular can be contested on the basis that it was not properly drafted,
signed or witnessed as required by law. To be properly executed, a Will must be
signed by, respectively, the “testator” (i.e., the maker of the Will) and
witnessed and signed by two unrelated parties.
Prenuptial and Postnuptial
Agreements. Such agreements, if valid, can affect the surviving spouse's share
of an estate, rights to homestead, exempt property, family allowance and
preference on appointment as personal representative of an intestate estate.
Prenuptial and postnuptial agreements are often challenged when a marriage ends
by death or divorce.
Bad Blood. Distrust,
resentment and competition among family members generally does not begin with
the death of a parent or grandparent; those conditions usually go back years or
decades and come to the forefront only when an inheritance or bequest is at
stake. Sibling rivalries and the selfish interests of extended family members
(distant cousins, ex-in-laws, etc.) should not be overlooked by would-be makers
of Wills and Trusts, and the impact of toxic or make-believe relationships can
be lessened with sound planning under the respectful guidance of an estate
preventing estate disputes
If some of the issues
discussed above hit a little too close to home, here are a few actions you should
First, talk to your spouse
and kids about your estate plan. Let them know who will be in charge of your
estate when you die, and, at least in general terms, tell them how you want the
story to end with respect to who gets what and when. For a few tips, see our
Planning and Parenting
when the Kids Are Adults.”
Also, while you're talking, try to find out who wants
which keepsakes and, if there is competition, work it out before you are gone.
As for who is to receive what, your instructions do not need to be part of your
will or trust. You can leave instructions, outside of your formal estate
planning documents, that your personal representative or trustee can follow in
distributing your assets. It’s important to be specific, and it’s not a bad idea
to attach photos of item that are difficult to fully describe in words.
Finally, our article, “Has
Your Estate Plan Aged as Gracefully as You?”, describes a number of
triggering events that should prompt a review of your Will or Trust documents.
Among the issues we did not raise in that article is the potential for an
outdated estate plan serving as the catalyst, after you die, for lawsuits among
your children or between your kids and your spouse.