PROBATE ESTATE DISPUTES
“Death is not the end. There remains the litigation over the estate.” — Ambrose Bierce
Think your family feud after the death of a close relative is bad or novel? Remind yourself that humans have been squabbling over inheritance since Jacob and his twin brother Esau. Major wars were fought across the globe over the right to inherit titles, lands, fortunes and other rights. Palace intrigue and assassinations from Medieval Europe to ancient Chinese dynasties were focused on nothing more than our who gets to care for (i.e. control) the elderly king or the invalid or infant emperor – today we call this “guardianship” but the fights are no less fierce or cunning. Peace treaties and national laws were signed to protect one’s right to inheritance over another.
Modern probate and estate disputes, when submitted through our judicial system, should be more orderly and less murderous, though they may be no more peaceful or amicable. Court appointed fiduciaries, such as independent executors, dependent administrators, or guardians are tasked to perform their required statutory duties, whether being to pay bills, invest properly, sell property, ensure adequate care and lodging, etc. Often, other family members or outside parties (such as the decedent’s creditors) sue alleging fiduciary misconduct (e.g. Trustee Trudy finances her Fabergé Egg collection with the funds from the Family Trust), failure to perform (e.g. Dependent Administrator Dennis refuses to turn over the Star Wars Lunch Box collectibles as per the will to Cousin Carl), mismanagement (Guardian of the Estate Edna used Grandma’s money to install a 3D 58” flat screen rather than patching up the leaky roof), or for some unpaid bill against the estate (Grandpa George racked up $37,000 on his Premium Walmart Mastercard before passing away, and now its time to pay). Sometimes the fiduciary has to sue others to enforce a will (e.g. Cousin Merle is driving around decedent grandpa’s old Chevy, though the Will says that Cousin Charlene gets the family heirloom pickup truck. Independent Administrator Irma needs to reclaim the Chevy), or some other right (e.g. Cousin Lou-Anne moved into Grandma’s double-wide, won’t give Grandma her daily medication, and is wearing all of Grandma’s jewelry. Gregg the Legal Guardian needs to save the day).
We know these disputes can be serious, substantial, and personal. We will do our best to separate emotion from logic, help our clients weigh out the costs of litigation v. the benefits, and then pursue victory through the right balance of aggressive litigation and artful diplomacy.
“I refused to attend his funeral, but I wrote a very nice letter explaining that I approved of it.” — Mark Twain
An adult of sound mind has the right to bequeath their worldly goods to whomever they want. It is after all their will. Family expecting to inherit may be displeased to learn that a decedent changed their will to award a kind care taker at the family’s expense. They may choose then to contest the decedent’s dying wishes. And often, such a lawsuit would epitomize greed. Other times, though, family should be distrustful of an elderly individual’s changes to a will that occurred shortly after an opportunistic family member or neighbor moved in with and/or unduly influenced the decedent.
A will contest seeks to “knock out” through a lawsuit a Last Will and Testament and stop a court from accepting that will as a valid legal document. Such a lawsuit’s goals is to prevent someone’s assets from being divvied up according to a will.
An individual, whether living or through their Last Will and Testament, can create a Trust to administer assets intended for another. Individuals choose to set up trusts to hold funds for a minor until a certain age is reached. Sometimes trusts are set up to handle and grow assets even while distributing some on behalf of multiple family members.
Just as there can be many reasons and goals for a Trust, so too can there be all too many to sue over one. The Trustee administering the assets might himself mismanage the money (e.g. “This Enron company can’t fail! I’ll just put all the Trust’s eggs in that basket.”), abuse his position (e.g. “Sure, I could sell this Monet and deposit the money into the Trust’s accounts, or I could just hang it in my dining room for a while.”), or fail to follow the Trust’s terms and conditions (e.g. “True that per the Trust, Grand-daughter Denise is entitled to $3,000.00 per month, but I didn’t like her attitude on the phone yesterday. I think I’ll punish her with a $1,000.00 deposit instead.”). Then again, the terms of the conditions of the Trust may be vague (e.g. “The Trust should take good care of all the beneficiaries.”) or impossible to carry out (e.g. mandating that the Trust distribute assets equally between beneficiaries, but the assets are several collectible cars of differing values that cannot be sold as per the Trust’s terms.).