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Unfortunately, there is an increasing need to litigate matters in the world of trusts and estates so that a “just result” can be achieved. The trust and estate laws can be complex and there a myriad of laws, requirements and obligations involving family addressing estate matters.
Last Wills and Testaments
The first area to consider are Will Contests in the context of a probate proceeding. When a loved one changes his or her Will (especially near in time to the decedent’s demise), one may call into question what were the true intentions of one’s loved one. Issues can arise when a family member has been removed as a beneficiary of the Will (or limited provisions have been made for said beneficiary).
A Last Will and Testament can be voided due to undue influence, lack of capacity or the improper execution of the Will. In such a situation, the disinherited beneficiary may be able to have the court void the Will and enforce a prior Will or have the estate pass by intestacy which can be to the disinherited beneficiary’s benefit.
Will provisions may be challenged due to a lack of clarity by a reformation proceeding which can make sure the wishes of the decedent are carried out as intended.
Sometimes, there is an issue regarding the Executor who fails to do his job properly. A removal proceeding can be brought to have the Executor removed and replaced. There are situations when the nominated Executor should not be appointed in the first place and his or her appointment can be challenged.
Other times, a beneficiary may be left out in the dark by the Executor during the estate administration. In such case, one can seek an accounting from the Executor as to the collection of the estate assets and income and the payment of estate expenses and distributions to the beneficiaries. The Executor has a duty to properly manage and invest the estate assets and a duty to file estate and income tax returns, when required by law.
Other times, an estate may have been reduced or eliminated by gifting prior to death or by retitling assets and/or beneficiary designations. Such actions, especially when undertaken by an agent under a Durable Power of Attorney or on one’s death bed, may thwart the testator’s real intentions as to who should benefit from his or her estate and in what manner. A turn over proceeding can be commenced to have the assets returned to the estate.
Trusts
Similar to the issues addressed under Wills, Trusts present similar issues and are subject to the same scrutiny. A trust may be challenged if not properly executed or executed under undue influence or at a time when one lacks capacity.
Trustees are charged with the carrying out of the trust provisions. Beneficiaries have a right to receive the trust assets as provided for in the trust. Trustees are fiduciaries and have a responsibility to the beneficiary for the proper administration of the Trust which includes proper management and investment of the trust assets.
When issues arise regarding the Trustee’s actions, beneficiaries can seek the services of an experienced trust and estate litigator to seek redress in the court.
Legal Services
At our law firm, we have represented individuals to ensure that their testamentary desires via a Will or Trust are carried out. We represent Executors and Trustees in the administration process which includes advising them of his or her responsibilities and defending said Executors and Trustees when claims are made against them by beneficiaries and family members. Lastly, we represent beneficiaries and family members who have issues regarding the implementation of a Will or Trust and the administrative process.
Before litigation, there are a number of avenues that can be taken to resolve problems in the most effective and cost efficient manner. At our law firm, we explore all options and strategies with our clients before commencing litigation. Litigation can be emotionally draining, time consuming and costly. Unfortunately, sometimes litigation is required in order to obtain justice.