Trust and Probate Litigation

Probate Courts conduct proceedings that administer a deceased person’s estate. This can be done either testate — with a Will — or intestate — without a Will. The word “probate” has become synonymous with the legal proceedings dealing with the administration of an estate.

In the administration of an estate, whether pursuant to a Will or a Trust, sometimes disputes arise.  If the parties to the dispute are unable to resolve their differences and a lawsuit needs to be filed, the Probate Court oversees these disputes. This is commonly referred to as Probate, Estate, or Trust Litigation.

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Probate Courts handle a broad range of estate issues.  Many issues, such as admitting Wills, assigning executors, identifying the assets of the deceased, deciding on the payment of taxes and other expenses, and distributing the property among beneficiaries or legal heirs are fairly standard and largely uncontested. 

Probate litigation can involve disputes over who is in charge of the administration of an estate or how that administration is being handled. Common issues involve challenges to the appointment of a Personal Representative, guardian, or conservator; replacement of a Trustee;  questions surrounding the inventory of estate assets; challenges to the validity of a Will or Trust; clarification of the wording or intent of a Will or Trust; modification or reformation of estate plans; lawsuits to terminate a Trust as its purpose has become impracticable; and disagreements regarding the distribution of the estate.

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Nobody fights like family. Probate litigation can be amicable and resolved quickly.  Other times, the existence of sibling rivalry, second marriages, and dysfunctional families can unnecessarily increase tensions. Some common issues:

• Individuals who have had multiple marriages without a pre-nuptial agreement or a detailed estate plan can incite probate litigation. Having a plan and common agreement on separate and community property can help prevent disputes;
• Not making wishes clear to all beneficiaries and heirs while still alive and leaving family members to questions last minute changes to an estate plan; 
• A non-standard estate plan, where a child is omitted, or treated differently;
• Overly detailed or ambiguously worded Wills or Trusts, 
• Post-death gifts to lovers or care givers that were not known to the nuclear family; and
• Poorly appointed fiduciaries, or co-fiduciaries who cannot get along.

Given the nature of probate litigation, and the high emotions associated the passing of a loved one, even the best familial relationships can become strained.  While not all estate-related contests can be prevented, hiring legal counsel with the tact, experience, and sensibility to work in this environment can lead to a more efficient resolution.

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Defective Estate Documents– All states require certain formalities when executing estate plans. For example, state law requires a Will to be signed and witnessed by two disinterested parties.  Failure to adhere to the required formalities in the execution of the estate plan can be the basis to contest them.

Breach of Fiduciary Duties– The Personal Representative designated in the Will or appointed by the Court, or the Trustee of a Trust owes the beneficiaries of the estate certain fiduciary duties of honesty, prudence, and loyalty.  When those duties are violated a lawsuit can arises.

Breach of Legal Duties – The laws of the state in which the Will or Trust is administered set forth specific requirements for the Personal Representative or Trustee in the administration of the estate.  Sometimes these individuals are ill-equipped to perform these mandatory tasks, or ill-advised in accomplishing them.  A common friction point is the requirement to provide the Beneficiaries with a proper accounting of the estate assets.

Breach of Estate Plan Terms – In addition to the requirements found in the state laws, a Will or Trust may provide specific instructions on the administration of the estate. Occasionally the Personal Representative or Trustee innocently fails to adequately understand and follow these instructions. Sometimes corrupt motives are at play.

Elective Share – Some states, including California and Hawai’i, provide for an “elective share” to surviving spouses. This requires a portion of the deceased’s  estate to pass to the surviving spouse according to a formula set forth in state law. This “elective share” can be further complicated in community property states, like California. 

Forged Documents – If the estate planning documents, such as a Will or a Trust, are forged or the signatures have been forged, there will likely be a legal challenge to the plan.

Lack of Capacity – When executing an estate plan, a person must have the required mental competency to understand the nature of his or her estate assets and the people to whom the estate assets are going to be distributed.  A Will or Trust can be found invalid and voided if the testator does not have capacity at the time the estate plan documents are signed. Questions of incompetence often arise when a medical diagnosis of dementia, senility, Alzheimer’s, or psychosis has been made prior to estate plan documents being executed. 

Undue Influence– In some instances an undue “influencer” will upset a long-established estate plan. If someone is compelled or coerced to make changes to a Will or Trust by a relative, friend, trusted advisor, or health care worker, that is undue influence. In other cases, one relative – typically in undertaking a caregiver role- may coerce a family member to write other relatives out of the estate plan. 

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That is not really how our justice system works.  First, if a Trust is involved, the judge will not even see it unless someone files a petition in Probate Court, as Trusts are not subject to the Probate process.  Second, if a Will is involved the judge is not going to know your concerns unless you raise them to him or her.  Judges will likely catch glaring errors that violate the validity of a Will, but they are not going to engage in a personal investigation of each document filed in their court.  If you think there is something wrong, it is best to immediately contact a probate attorney for evaluation and advice. If you don’t, you can be prevented from raising these concerns at a future time.

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Typically you will be given notice as a part of the probate or trust procedures.  This doesn’t always happen.  We have been involved in cases where a Trustee attempted to claim he didn’t have current addresses for all those requiring notice and sent it only to the one person who he thought would not complain.  As an heir, you are a potential beneficiary.  You may have been legitimately excluded from the estate.  You may not.  If you are aware of the passing of a relative and a month or more has passed without any contact, it’s not an unreasonable time to call us to see how we might be able to assist.  It may be just an oversight.  It may not.  Doing nothing may prevent you from raising your rights later. 

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Any person with an interest in an estate may file written opposition. Interested persons include heirs, devisees, spouses, creditors, or others having a property right in, or claim against an estate. Interested parties may also include those interested in the welfare of an incapacitated person or minor.

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A codicil is legal document that makes a change to one or more of the terms of a Last Will and Testament. Codicils are used to amend the Will without creating an entirely new Will. Codicils are most typically found in instances of remarriage, additional children, or new property acquired after the Will was created. They are subject to all the same legal formalities in execution as a Will.  

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Yes, from both a legal and an emotional perspective, Will Contests and Trust Litigation are challenging.  If you believe that someone has done something improper, you should go into litigation fully informed.  Typically, the complaining party bears the burden of proving wrongful conduct.  There are circumstances where competent counsel can shift that burden.  If a court finds wrongful conduct, it will intervene to make it right.

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Every situation is different, but here are some basic tips:  

• Gather the estate plan documents: the Will, Trust, and any amendments and exhibits and related documents.
• Gather all other documents that may related to the dispute: financial account records, notices, letters, invoices, notes, and emails.
• Create a list of all individuals that may have information related to the dispute.  
• Consult with a probate attorney.

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Every situation is different, but here are some basic tips:  

• Don’t communicate with others without first consulting with a probate attorney and getting specific guidance. Unlike your communications with your lawyer, communications with others may be used against you if your case ends up in litigation.
• Don’t wait and hope things will get better or rely upon promises from the person you believe committed the wrongful conduct without first consulting with a probate attorney. Claims are subject to statutes of limitations, or time periods when they need to be brought, or lost.  You should understand what these are and how they work, or you could be left without a remedy for even the most meritorious case. 
• Don’t sign or agree to any settlement terms without first consulting with a probate attorney. 

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Yes. Litigation involving Wills or Trusts will require an attorney.  Probate and Trust Litigation follows a different set of laws that a highly competent general litigation attorney is unlikely to be familiar with and may not feel confident handling. Seeking competent counsel is an important first step in achieving a successful outcome.

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Litigation can be costly and the decision to forgo pursuing meritorious claims is not one you should be forced to make.  This firm prides itself in offering competent, cost-effective representation.  There are some instances where we are willing to take cases on a contingency fee basis.  Contact our office to see if you are eligible.

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When you assume the role of Trustee or Personal Representative, you agree to perform certain duties and take on certain responsibilities. Theses duties and responsibilities are found in the probate law. If a Trust is involved, these duties may be further circumscribed in the Trust document.  Generally, you agree to administer the estate in accordance with its terms, and to certain fiduciary responsibilities to the beneficiaries. These duties include: keeping the beneficiaries reasonably informed, protecting the estate’s assets, and accounting to the beneficiaries.

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Serving as a Trustee or Personal Representative for a family member can be a thankless job. Some people assume the role without being prepared.  Even those who are prepared for the technical aspects of the job, may not be prepared for the interpersonal difficulties that can arise in dealing with beneficiaries.  Stepchildren, estranged or jealous relatives, and unrelated persons who were dependent on the Deceased can be a source of great tension.  If your relationship with the Beneficiaries has become strained, they may seek to have you removed, and even seek payment directly from you for alleged wrongful conduct. 

Trustees and Personal Representatives can be accused of mishandling the estate or Trust, failing to disclose, mismanagement, misappropriation, self-dealing, embezzlement, failing to account, and other things that may not be true.  As the appointed agent for the estate, you have a fiduciary duty to defend the estate against lawsuits or claims.  If you have done nothing wrong, that includes defending your position as the appointed agent.  In some cases, missteps or negligence may have occurred in the performance of your duties and you are now seeking to quickly remedy unintentional errors.

A Trustee or Personal Representative who is being threatened or abused needs legal counsel who understands the challenges that come with being a fiduciary. Whether you are a professional fiduciary, or just a loving friend or relative, having experienced legal counsel on retainer can be invaluable.  As a Trustee or Personal Representative you have the right to such counsel to assist your administration of duties, and the law provides compensation from the estate to pay for defending claims against the estate or pursuing claims for the benefit of the estate.

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Failure to comply with the estate plan.  Ignoring or failing to abide by the terms, may be cause for the Beneficiaries to petition the court for removal.

Neglect or mismanagement of assets.  Trustees and Personal Representatives have a fiduciary duty to manage the estate assets to avoid waste or devaluing.  A breach of this duty, either from negligence or incompetence, may result in the Beneficiaries petitioning for removal.

Self-Dealing.  Trustees or Personal Representatives who use their control over funds for personal gain or benefit may prompt a petition for removal.

Poor communications or hostility with Beneficiaries.  A breakdown in communications, hostility, or failing to reasonably respond to inquiries and requests by the Beneficiaries can lead to a petition for removal.

If you have concerns in any of these areas, it’s wise to consult with an experienced probate attorney.

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A victory in probate court is somewhat hollow if the litigation costs expend the estate’s assets. This firm works first to resolve problems amicably.  If, and when, we pass that point, we approach litigation with the goal of resolving disputes as efficiently as possible.  

If you are a Trustee or Personal Representative you can benefit from legal counsel in a number of ways, even if a dispute has not reached the litigation stage.  

• Advising you on your duties and obligations with respect to state law and the particular terms of the Will or Trust. 
• Helping you establish clear lines of communication with the Beneficiaries and informing and assisting you with reporting requirements. 
• Providing dispute resolving recommendations based on your specific case and situation.
• Recruiting cost effective talent to help you administer the estate. 
• Zealously defending the estate plan against unwarranted claims. 

Our goal is to resolve disputes while protecting the value of the assets so the beneficiaries receive what was intended for them and you can wind down the estate on a reasonable timeline and budget.

Need more specific advice? Contact CASHMAN LAW to set up a free consultation.

A beneficiaries’ rights can depend on the terms of the Trust. Once a Trust becomes irrevocable, however, you have certain legal rights. Included in these rights are: the right to receive a copy of the Trust document(s), the right to receive periodic accountings, and the right to be kept generally informed of the actions of the Trustee.

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Executors, administrators and Trustees are legally required to perform certain fiduciary duties.  Included in these duties are the duty to keep proper accountings of all investments and money going in and out of the Trust or estate.  A failure to act honestly, fairly, and in good faith when performing this duty may result in legal action by the estate’s Beneficiaries.

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If you are a Beneficiary or an heir of the Decedent, the law requires a Trustee of an irrevocable trust to provide a true and complete copy of the Trust upon written request.  If the Trustee fails to honor this requirement, you can petition the court for an order to compel the Trustee to provide these documents. 

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Trustees are not always adequately prepared to handle their responsibilities.  Some embrace their fiduciary duties and obligations and administer Trusts seamlessly, transparently, and quickly. These Trustees are a source of comfort and bring peace and harmony during a difficult time.  When they need assistance, they retain professional help to guide them through the process.

Then you have other Trustees who lack the time or specific competence to effectively perform the job.  They withhold information; act selfishly; mismanage Trust assets or engage in self-dealing; ignore their duties and responsibilities; and threaten Beneficiaries if anyone questions them.

If you are faced with the later, you may be forced to file a petition to have the Trustee removed and can seek to recovery any assets they have wrongfully expended or wasted.  Generally, the first step in this process is to request in writing to the Trustee that they remedy their misconduct. This firm can assist drafting that correspondence so that it adequately protects your rights should you be forced into litigation. 

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Concisely stated, a Trustee may be removed when they violate the duties of a fiduciary as outlined by law and/or subscribed in the Trust. Some examples include:  

• Not acting in accordance with the best interest of the estate. Failing to seek appropriate assistance that leads to waste, mismanagement, or neglect. 
• Co-Trustees or co-executors not cooperating, causing friction within the estate.
• Incapacitation of the Trustee or Personal Representative due to injury or illness. 
• Running up excessive expenses not in proportion to estate assets or the testamentary terms. 
• Self-dealing or misappropriation of assets to others. 
• Being unresponsive to reasonable requests from the Beneficiaries. 

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If you are a Beneficiary you can benefit from legal counsel in a number of ways, even if you have not yet reached the point where you need to file a lawsuit.  

• Advising you of your rights with respect to state law and the particular terms of the Will or Trust. 
• Helping you recover losses due to waste, neglect, dishonesty or errors in the interpretation of the terms of the testamentary documents. 
• Advising you on the legal grounds to challenge the validity of a Will or Trust.
• Reminding the Trustee or Personal Representative of their obligations and duties and insure they follows the letter of the law and act in the best interests of the estate and its Beneficiaries. 
• Identifying the important facts and circumstances and help you establish goals for resolving disputes. 
• Providing recommendations based on your specific case and situation if your fiduciary has violated laws.
• Advising you on disputes with other Beneficiaries.

Our goal is to resolve disputes while protecting the value of the assets so you receive what was intended for you and the Trustee or Personal Representative can wind down the estate in a reasonable timeline and budget.

Need more specific advice? Contact CASHMAN LAW to set up a free consultation. 

A Will Contest is probate litigation in which some interested party challenges the validity of Will. Such challenges are most often based on allegations of undue influence, incapacity of the testator, fraud, or duress.

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In some cases, yes. Your attorney fees can be reimbursed by the Estate if you successfully oppose the validity of a Will.

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The most common reasons for contesting a Will are: claims of undue influence or incapacity on the testator; fraud; spousal elective share rights; and defects to the required execution formalities.

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Before the Will is probated (or accepted) by the Probate Court.  General, if you file a contest before the Will is probated, the person attempting to probate the Will has the burden of proof to support a finding that the Will is valid. If you file a contest after the Will is probated, the burden shifts to you to show the Will was invalid.

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A person’s estate is responsible for their debts after death. Creditors may bring claims to receive repayment of debts the Decedent incurred before passing. 

Once the Will is admitted to Probate Court there may be claims made on the estate. Anyone may make a claim for money or property on the estate, either by petitioning the Personal Representative or the Court. If the claim is rejected by the Personal Representative, the claimant may file a lawsuit to attempt to prove the claim and collect money from the estate.

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Take that document to an experienced probate attorney to help you determine if that version should be filed with the court.

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Most people with a working knowledge of how a Trust functions understand that one of the advantages of a Trust is that it avoids Probate Court.  In other words, the Trust is not required to be filed with Probate Court, and the estate is not administered by the Probate Court as the Trust assets are administered and distributed.  This saves time and money.  If, however, a dispute arises regarding a Trust—either from its formation, administration, or distribution—litigants can take their claims to Probate Court.  As is the case with a Will, a beneficiary, heir, or interested party may seek to challenge a Trust based on alleged fraud, duress, incapacity, or undue influence in its formation.  Additionally, during Trust administration, Beneficiaries and the Trustee may have differing perspectives on how things are being handled. This can lead to Trust litigation.  Finally, as the Trust assets are distributed, and a final accounting is provided, there may be disputes as to the final distribution that result in a petition being filed in Probate Court.

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Claims brought in Trust litigation closely mirror those typically found in Probate litigation. 

• Defective Trusts – Trusts that fail to meet the statutory requirements can be found invalid and the estate may “fall back” on an earlier testamentary document, like a prior Trust or a Will.
  
• Undue Influence – Trust documents, restatements, or amendments may be held invalid if they were signed under undue influence, even if the person who exerted this influence was not the beneficiary of the change.  
• Incapacity – Those executing a Trust must be able to understand the nature of the Trust they have established at the time they signed it.  
• Creditor Claims – Creditors may seek repayment by claiming rights to a portion of the estate.
• Accounting Disputes – Beneficiaries may claim a Trustee has not properly accounted for fees, investments, distributions or taxes, and seek to hold the Trustee responsible for mismanagement. 
• Spousal Rights – Poorly written estate plans can be subject to challenge if they do not account for surviving spouse’s elective rights.

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Many estate planning attorneys advise their clients to include no contest clauses in their testamentary documents.  They also frequently advise clients to give meaningful gifts to those they plan to disinherit to minimize the risk of litigation. This functions as a carrot and a stick.  If the disinherited party doesn’t complain, they get something.  If they do complain, they risk getting nothing.  A typical no-contest clause might provide: “any person who contests this document shall forfeit the right to receive anything provided herein.” 

Forgoing meritorious claims may not be the right choice. The better choice would be to contact an experienced probate attorney to asset your claims, and the risk to you.  

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Take that document to an experienced probate attorney to help you determine how you should handle it.

Need more specific advice? Contact CASHMAN LAW to set up a free consultation. 

Yes.  As is the case with all litigation, many disputes can be settled prior to a claim being filed, and most are resolved before trial.  The goal is always to attempt to resolve disputes.  If they can’t be resolved, this firm has the trial experience to represent you in Court.

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