When Should You Hire A Fiduciary Litigation Lawyer?

A properly drafted will should clearly identify all beneficiaries and leave no ambiguity surrounding the intentions of the Testator. Similarly, a properly drafted trust instrument should identify all beneficiaries, clearly state the terms and conditions upon which the trust is made and leave no ambiguity surrounding the settlor’s intentions. Unfortunately, estate planning documents, whether wills or trusts, do not always clearly reflect the intentions of the testator or settlor. Even if the language of the documents is clear, parties may have other reasons to initiate a lawsuit or object to a will or trust.

When someone with standing objects to a will or a trust, the estate or trust might have to be litigated. This is sometimes referred to as a “will contest” or a “trust contest.” These disputes can be complex and should be navigated by attorneys with expertise in such matters, including an intimate knowledge of probate court rules and procedures.

Probate Courts

Typically, if an estate planning document is involved, a probate court will determine whether or not the document is valid. If the document is found to be valid, the court will oversee the allocation of assets and will ensure that the named fiduciary carries out the wishes of the Testator or settlor in a lawful and timely manner. The probate court also oversees the distribution of assets if a person died intestate, without a valid will.

Who Can Contest A Will Or Trust?

A protesting party may only contest a will or trust if he or she falls within one of two categories. First, those mentioned in the instrument, known as the beneficiaries, may formally challenge the document. Alternatively, if the challenger stands to inherit according to laws of intestacy (such as a family member), but is not named in the will or trust, or is expressly disinherited, he or she may seek to contest. If one is not named as a beneficiary in the will or trust and is not a family member eligible for inheritance, known as a distributee, he or she may not pursue a formal challenge.

In order to successfully contest a will or trust, the protesting party must prove that the document is invalid. There are several scenarios under which a will or trust may be found to be invalid, either in whole or in part, including but not limited to:

• Undue influence – If the testator altered his or her will or if a settlor altered his or her trust under the threat of force or other persuasions, it is said that he or she was under undue influence.
• Mental incapacity – Similarly, if the testator or settlor is shown to have been in an incapacitated or otherwise impaired mental state at the time the instrument was executed, it may be considered void.
• Will does not follow procedure – A will may be contested if it was signed in the absence of witnesses, was not signed by the testator, or is otherwise not executed according to the law.
• The will or trust was revoked – If the will or trust was revoked after it was signed, it will also be considered void. A subsequent will, marriage, or legal action may also revoke a will.
• Fraud – Lastly, the protesting party can contest if he or she has proof that the testator or settlor was deliberately misled by a third party.

When There Is No Will

In instances where no valid will exists then intestacy laws which indicate what assets each family member is to receive go into effect. Typically, inheritance is granted to family members according to a specific order. Once the decedent’s debts have been paid from the estate, the remaining assets are distributed among the testator’s spouse, children, parents, siblings, grandparents, grandchildren, or great-grandchildren.

Without the guidance of a experienced fiduciary litigation attorney, the web of rules involved in the process can be overwhelming and lead to serious errors or even forfeiture of one’s rights. Whether you are a personal representative, trustee, beneficiary or someone improperly left out of a will or trust, contact Schormann Law Firm, LLC, online or call 636.875.7653 to discuss your options.

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