Estate and Trust Disputes

Reduce the Risk of Estate & Trust Disputes

Disputes that arise after a loved one dies can be incredibly destructive, to both assets and relationships. Such disputes can also destroy the loved one’s intended asset distribution plan. Careful estate planning, carried out with the help of an experienced estate planning attorney, can often avoid estate and trust related disputes entirely or help minimize the damage caused by any disputes which do arise.

Many estate and trust disputes result from poor fiduciary selection. When a Power of Attorney agent, an Executor, or a Trustee fails to fulfill their duties, it is considered a breach of fiduciary duty. These include failing to provide required accountings and tax information to beneficiaries, improperly investing assets that belong to the principal or to the estate or trust, improperly using assets for the fiduciary’s personal benefit, failing to file returns and pay taxes, improperly dividing assets among beneficiaries, making improper distributions, and failing to make proper distributions. A breach of fiduciary duty can be the result of the fiduciary’s deliberate action, or it can be result of a fiduciary who has unintentionally acted inappropriately or failed to act as a result of the fiduciary’s own incompetence, ignorance, distraction, or stress. For all of these reasons, who you designate as your fiduciary is extremely important.

Estate and trust disputes can also involve a direct challenge to a Will or trust. These disputes usually involve at least one of the following questions:

  • Is the Will or trust legally valid?
  • Is the Will or trust a true expression of the intent of its creator?
  • Is the interpretation of the Will or trust correct?

A challenge to a Will or trust (often called a “Will contest” or “trust contest”) may be the result of legitimate concern by family members. However, a Will or trust contest may also be an attempt by a disgruntled beneficiary or would-be beneficiary to improve the benefit he or she receives under the document. Either way, these disputes often involve allegations that one or more of the following factors is present:

  1. The Will or trust document is improperly executed.
  2. The Will or trust was created by someone who did not have the required legal capacity to do so.
  3. Someone exerted influence over the creator of the Will or trust, and that influence led the Will or trust creator to do something he or she did not really want to do, or would not otherwise have done.

An estate planning attorney is an asset in these situations. If the attorney has worked with a client over a long period of time, they may be the first person to become aware that someone has asked the client to make a change to their power of attorney, Will, or trust. The attorney is also in a good position to tell whether the requested change appears to be consistent with the client’s past history or whether something seems “off.” The estate planning attorney may also be able to communicate the attorney’s concern to the client, and even refuse to help the client make any changes the attorney believes do not truly reflect the client’s intent.

If the attorney believes that the client is acting on his or her own desires and has the capacity to sign the requested documents, a careful estate planning attorney will walk the client through considering the overall plan, and try to ensure that the client’s actual intent is clearly expressed in the documents. Experienced estate planning attorneys should know when to suggest that a client use documents in addition to a Will, such as a revocable living trust, to help reduce the ability of a contesting party to create havoc with the estate administration process.

Good estate planning attorneys also know what steps are required to ensure that Wills and trusts are signed correctly, and they can help ensure that a client’s capacity to sign is verified and well documented in cases where there may be some question. An experienced estate planning attorney is aware of what provisions to include in a document to help minimize the risk that anyone will attempt to contest. A qualified attorney should also help you ensure that you know how to own your assets and set up your beneficiary designations, so that they are consistent with your desired estate plan and can reduce the risk of disputes in the future.

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