Trust litigation, probate and estate controversy, inheritance disputes

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 & Alexander'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 personal representatives, successor trustees, guardians and conservators.

Breaches of Fiduciary Duty

Increasingly, Hoopes Adams & Alexander 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.

Duties include 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 fiduciary duties.

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.

Do-It-Yourself Planning. 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 planning professional.

preventing estate disputes

If some of the issues discussed above hit a little too close to home, here are a few actions you should consider.

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 article, “Estate 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.

 

Highlights

As discussed in detail below, the causes of trust and probate litigation, guardianship disputes and contested estates are many in number. Here are just a few:

  • Failure to Plan

  • Failure to Keep the Plan Up to Date

  • Do-It-Yourself Planning

  • Lack of Capacity

  • Fraud, Duress and Undue Influence

  • Lack of Formalities

  • Prenuptial and Postnuptial Agreements

  • Bad Blood

  • Underestimating the Importance of Non-Monetary Assets

  • Breaches of Fiduciary Duty

Attorneys

Ron Adams

Ryan Scharber

 

Probate and Trust Administration

Personal Representative Handbook

Successor Trustee Handbook

Avoiding Personal Liability in Acting as a Trustee or Personal Representative