Estate & Trust Litigation

Is your family fighting? You may be embarrassed to say “yes,” but the truth is, you’re not in the minority.

Maybe you are a beneficiary who feels they are getting the runaround from an executor, trustee or personal representative. You feel like they aren’t answering your calls, your letters, or haven’t sent you the money you were promised.

Final administration of an estate involves many things: probate of the estate, collection of the assets, calculation and payment of estate taxes and the distribution of remaining assets. Sometimes there are delays in this process, caused by various questionable circumstances, such as testamentary capacity to do a will or to appoint a power of attorney and misuse of the power of attorney by the person appointed, undue influence, conflict of interest and self dealing. An experienced attorney can facilitate the process, even if questionable circumstances arise, in a timely and effective manner. It is especially important if there are questionable circumstances such as testamentary capacity to do a will or to appoint a power of attorney and misuse of the power of attorney by the person appointed, undue influence, conflicts of interest and self dealing.

WILL AND TRUST CONTESTS

Frequently, heirs object to even the best made wills and trusts and conflicts can arise before or during the administration of an estate or a trust. There are many types of disputes that can arise. Here are a few examples:

VALIDITY

Everyone has the right to dispose of his or her property as they wish, without consideration for the wishes or opinions of family, friends or anyone else. It is possible, however, to set aside a will or trust. A person contesting the estate plan must prove that at the time it was signed, the deceased lacked the requisite mental capacity, or that the will or trust was procured as the result of undue influence, fraud or duress. Also, some wills or trusts are invalid because they were not properly executed. For example, wills must be signed before two witnesses, except for holographic wills written in the hand of the testator (the person whose will it is). If the witnesses signed the will after the fact and did not actually see the decedent sign the will, then the will may be thrown out as invalid.

When that happens, if there is a valid prior will or trust, the court will go back to the earlier document and distribute the decedent’s assets in the manner it provides. If there is no valid prior will or trust, then the decedent’s estate will pass through probate as if he or she died without a will at all.

Be advised that many wills and trusts have “no contest” clauses that are designed to discourage contests. This means that if you are an heir and you contest the validity of a will and you lose, then you may be disinherited by operation of the no-contest clause.

BREACH OF FIDUCIARY DUTY

Executors and trustees owe a fiduciary duty to the heirs and beneficiaries of the decedent. A fiduciary duty consists of a duty of good faith and fair dealing, and a duty of competency. A fiduciary must always consider the best interests of the trust or estate before his or her interests. When an executor or trustee profits from his or her position, other than earning agreed-upon compensation, they may have breached their fiduciary duty. A failure to safeguard trust or estate assets that causes a loss to the heirs and beneficiaries may also be a breach of fiduciary duty. The heirs and beneficiaries damaged as a result can file a lawsuit against the executor or trustee. Under some circumstances, the executor or trustee can be held personally liable for the loss.

FAILURE TO ACCOUNT

Trustees and executors have a duty to keep all estate assets separate and identifiable, and to account to the beneficiaries for all monies coming into and going out. For probate estates, the court will not allow probate to end until a satisfactory accounting is complete. If the trustee of a trust fails to provide a proper accounting, the beneficiaries can file a petition seeking a court order compelling the trustees to do an accounting. Trustees who fail to properly account for their actions may be removed by the court.

The court will order them to account if they do not do so, unless all of the beneficiaries agree to waive such an accounting. If the executor or trustee has failed to keep records, or if they have failed to keep estate property separate from their own, a breach of their fiduciary duty is presumed.

CONTRACT TO MAKE A WILL

Frequently, people make promises they never keep. Some of these promises relate to wills and trusts, such as what a parent verbally promises their child upon their death and what is actually outlined in a will. When a promise isn’t fulfilled, sometimes it is possible to enforce what the courts call a “Contract to Make a Will.”

As a general rule, agreements to make a bequest of property after death must be in writing. If they are not in writing, such agreements are unenforceable. There is, however, one exception to this rule and that is where the person to whom the promise was made changed his or her position in reliance of the promise and suffered a detriment as a result when the promise was not fulfilled.

Here is an example to illustrate when this would apply:

Mom promises to one of her daughters that if she moves in and cares for her at home for the rest of her life, then that daughter would inherit the home. The daughter agrees. She gives up her job, sells her home and takes care of her mom around the clock for two years, giving up opportunities for employment and a social life. But after Mom’s death, the daughter discovers that her mother’s will divides the entire estate, including the home between all six children. In this case, the daughter may have a valid claim against her mother’s estate for a breach of contract.

WILL CONTESTS

The fact that a person leaves a will does not guarantee that property will be distributed according to the expressed terms in the will. A court generally must provide an opportunity to allow others to object to the will, and a challenge may be brought by anyone who feels the will is inaccurate or invalid in some way. These types of cases are often difficult and emotionally charged, so it is important to find an attorney with whom you feel comfortable and who is knowledgeable about such proceedings.

We have experience in litigating family disputes. We are experienced probate trial attorneys with an extensive background in probate law and litigation. In any dispute, we first try to mediate the disagreement in a practical and responsible way, preferring mediation and consolation where possible consistent with our client’s rights, goals and instructions.

CONTACT US TODAY

To speak with an attorney, please call Fredrick P. Niemann at 888-800-7442 or email him at fniemann@hnlawfirm.com to set up a consultation at your convenience.

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