During the probate of a will, beneficiaries and fiduciaries (executors) may find themselves in a conflict or dispute. This could involve a contest to the validity of a will or trust, the ability of a spouse or child to inherit, the manner in which a fiduciary performs her or his duties, or the payment of claims to a creditor. If there is no resolution, the dispute will be litigated.
If a party is contesting a will, there are numerous basis for this kind of dispute. Some common reasons for challenging a will are whether the will was properly executed, the competence of the testator (person who drafted the will), whether the will was forged or too vague, and whether the testator was under any undue influence or duress. Trust contests typically involve allegations of vagueness. A party seeking to set aside a will or trust would seek, as a remedy, an alternate means of distribution of the assets.
Guardianship: If a decedent did not provide for guardianship in a will, a guardian must be appointed to care for the child. This may result in a claim against estate assets.
Kinship: There are times when there are no immediate family members which survive the testator. When this occurs, extended family members may try to establish their kindship for the purpose of claiming estate assets. This can include cousins, uncles, aunts, and other distant relatives.
Creditors and Partners: Certain claims may also be made against the state by a creditor. This may include a creditor who’s claim was denied by the executor, or a business or business partner of a concern in which the decedent had an interest. Many operator agreements and bylaws contain rights of first refusal, which may give the business or business partners a claim against an interest in the business owned by the decedent.
Challenges to the Executor: If a party is alleging some misconduct by the executor, administrator or a trustee, typically styled a breach of fiduciary duty claim, there are most often allegations of mismanagement, negligence, or some more malignant conduct such as embezzlement or undue financial gain. A party challenging the conduct of an executor or administrator would typically seek their removal, and the installment of the person making the complaint or some third party. A party challenging a fiduciary may also request financial information regarding estate assets, including investments, bank statements, tax documents, and accounting procedures.
Personal Injury/Wrongful Death: The Decedent may have had, or may be subject to, a personal injury claim, and a wrongful death claim may be available if the decedent passed away under tragic circumstances. If the death resulted from a medical procedure, the estate may be entitled to bring a medical malpractice claim on behalf of the Decedent.
We represent executors and family members, both defending against and prosecuting claims against an estate. If you would like more information about our estate litigation practice, schedule an initial consult with us or call us today to speak with attorney.