Probate Litigation
Unfortunately, there are times that an experienced litigation team is needed to address issues of interpersonal or financial conflict in the planning or administration processes. These can include: issues of mental competency, undue influence, questionable changes to estate planning documents, or the failure of the fiduciary to properly perform their role.
Probate and Will Contests:
Trust Disputes
Generally, the creation of a Trust allows property to avoid probate and to quickly and efficiently pass to the beneficiaries you name, without the time and expense of the probate court’s involvement. When the person who executed a revocable living Trust (called the “Settlor”) dies, there is generally no need to register the Trust with the probate court. This is one of the primary reasons that people execute Trusts–to avoid probate.
Despite the Settlor’s best intention to stay out of court, there are times that the court’s involvement is necessary to resolve Trust disputes. The probate court is the appropriate forum when trust disputes arise.
Some scenarios in which there may be a need to commence a Trust dispute file to supervise its administration or to compel the Trustee to do something are:
- The Trust was executed while the person was under undue influence, mental incapacity, duress, fraud, or some other defect
- The trustee is not giving the Trust beneficiary(s) adequate information
- The Trustee is not administering the Trust properly
- There is a dispute about how to divide or distribute the Trust assets
- Assets were improperly titled at the time of death (joint ownership, pay on death beneficiaries, or not titled in the Trust)
- Allegations of fraud or self-dealing against the Trustee
Probably the most common Trust dispute is when the Trustee fails to keep the beneficiaries informed of what is going on in the Trust administration. Some Trustees believe that they have a right to keep the Trust affairs private rather than appreciating their fiduciary duty to the beneficiaries.
Wrongful Deaths
Following the resolution of a wrongful death case, the court must determine to whom to distribute the proceeds. After the payment of attorney fees, costs, and liens on the monies, the court will distribute the monies among the available wrongful death claimants. Most of the time, the personal representative, with input from the attorney and the family, is able to agree on how to distribute. Unfortunately, there are times when this is not possible and litigation ensues.
Each state generally has a statue that provides the method for determining how proceeds are to be distributed and who are wrongful death claimants. The Court or jury may award damages for reasonable compensation for the pain and suffering undergone by the deceased person while he or she was still conscious between the time of the injury and death. Damages may also be awarded for the loss of financial support and the loss of the society and companionship of the deceased.
Generally, the potential wrongful death claimants are the deceased’s spouse, children of the deceased’s spouse, children, descendants, parents, grandparents, brothers and sisters, and persons who are devisees under the Will.
The court must first determine whether the person that died experienced conscious pain and suffering during the period intervening between the time of the injury and death. Obviously, this is not an easy determination. The court will award to the probate estate (and not directly to the wrongful death claimants), that portion of the damages that is determined to be for conscious pain and suffering.
Next, the court must then distribute those damages for the loss of financial support and the loss of the society and companionship of the deceased directly to the wrongful death claimants.
Again, this is also not an easy determination.
Essentially, the wrongful-death claimants must present evidence as to whether they were receiving financial support and the extent of their individual loss of society and companionship.
Go Ahead, Ask Away…
We’re here to help answer your questions. Probate matters can be complicated, let us be your guide. We have experts on hand to answer all of your probate related concerns. We take great pride in using our skills and knowledge to help walk you through all of your concerns. We take great pride in using our expertise for you and look forward to hearing from you.