Attorney

Probate and Estate Litigation

There is almost nothing like death that brings out human greed. Sometimes those who are in a position of power, such as executors or trustees, take more than they should of an estate. Or sometimes they distribute assets – or give things – to others when they should not. Sometimes people encourage older people to change their Wills at the end of their life; sometimes people forge Wills. I will explain some of the more common problems in these areas below.

First Issue: The Will

If someone dies, and property is at issue, one of the first issues to think about if you are involved in a frustrating family situation is the Will itself. When someone dies, hopefully they had a Will. If they did not have a Will, the law says that they die “intestate,” which means that the law itself spells out how property is distributed. That is done by statute, but often there are fights between family members even under the language of the statute. If one family member has a lawyer, and another does not, often the family member without a lawyer can be at a disadvantage.

Let’s say there is a Will. Or multiple Wills. Is the Will valid? Or which one is valid? Sometimes there is a Will that everyone knew about. For instance, mom had a Will that left all of her assets to her two children. But mom remarried several years after executing the first Will, and at some point she changed her Will, or so it is alleged, to leave her children out of her Will and leave all of her property to her second husband. Is that Will valid? It depends. Wills can be invalid for a number of reasons. Sometimes they do not comply with the letter of the law, and they miss a key element in order to be valid. Sometimes Wills are executed under “undue influence,” such as when the person who signed the Will is improperly controlled by another. Sometimes the Will is executed by a person who does not have the “capacity” to execute the Will. For instance, if mom is in a nursing home, and mom has Alzheimer’s disease, for instance, asking mom to sign a Will when she is truly not of sound mind results in an invalid Will. A person must have their mental faculties about them when executing a Will. Sometimes Wills are forged. For instance, mom dies, and a strange new Will shows up leaving everything to a long lost relative with a strange signature, allegedly mom’s, on it. That Will is not valid if it is forged. Death brings out greed in some people, and the first step is figuring out whether the Will at issue is legally proper and enforceable.

If the will is questionable, a person can contest the validity of the Will – essentially arguing that the Will is not valid and should be ignored.

Second Issue: The Administration of the Will

If there is a Will, even when the language of the Will seems clear, there are those who wish to ignore the language of the Will or change its interpretation to disadvantage you. That is where you need a lawyer. If an estate representative, or “executor” or “executrix,” is handling the distribution of assets under a Will, sometimes they can make mistakes – and sometimes intentionally. Historically the word “executor” referred to a male and “executrix” referred to a female, but now the word “executor” or “administrator” is often used. If you are a beneficiary under a Will, you want to make sure that you receive what the decedent – the person who died – wanted to leave to you.

Often a person leaves a Will that names an executor. Let’s say it’s your aunt. Generally speaking, your aunt cannot begin to legally act as an executor, even if indicated in the Will to be an executor, until the Will is probated and your aunt is appointed by the Court to be the executor. Often people die, and the person named as the executor under the Will begins to distribute assets prior to probate. The Will by itself is somewhat meaningless until submitted to the Court for approval and ultimately approved. Part of that process is appointing an executor, or administrator, of the estate. A person cannot officially act as the executor and begin distributing assets until appointed by the Court. So if you are in the situation where a family member is improperly proceeding with distributing assets prior to probate, you need to speak with a lawyer.

But what if your aunt is the named executor under mom’s Will and asks to be appointed by the Judge to be the executor and you have concerns about your aunt’s ability to be the executor? Do you have an option? Absolutely. If your aunt isn’t qualified to be the executor, a beneficiary can ask the Court to appoint someone else instead of your aunt if there are valid reasons for doing so – i.e., valid reasons for your aunt not being the executor. So if you have concerns about someone trying to be appointed as an executor, it is better to be involved on the front end of that situation and contest your aunt’s appointment prior to her being appointed.

But what if your aunt is appointed, and your aunt is taking assets for herself or distributing them to her favorite relative instead of how the Will directed? Therein lies a problem. A beneficiary has a number of options in that situation, including asking the Court to order your aunt to abide by the terms of the Will and/or asking the Court to appoint someone else other than your aunt.

What if the Will sets up a trust to benefit you and others? Let’s say the Will provided that your uncle is the trustee, but you have significant concerns about your uncle’s ability to act as the trustee. For instance, you are concerned that your uncle might steal the money in the trust. Do you have a remedy? Absolutely. You can challenge the appointment of your uncle as trustee, ask for another trustee to be appointed, and/or request that the Court require a bond of your uncle in case he steals the money such that the bond acts as insurance.

Or what if your uncle is already appointed as trustee, but your uncle is not managing the trust properly – such as not distributing money, not accounting for money, and/or spending money inappropriately. Do you have a remedy? Absolutely. Not only can you seek damages from your uncle, but you can and probably should request an accounting and seek the appointment of another trustee to replace your uncle.

Each of these situations require an analysis of the underlying facts and law to determine the appropriate course of action, and if you are facing these issues, please give me a call.

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