Sometimes a surviving spouse or a beneficiary under a will or trust feels as it he or she has been wronged by the decedent or by the personal representative or trustee. Sometimes a beneficiary or the personal representative believes that a person or entity has incorrectly claimed that it is owed money by the decedent. Occasionally an original will or trust is lost or a will is filed that might be deficient for some reason. When any of these conditions is present, an adversary proceeding in probate court or a separate civil action sometimes can provide a solution.
Types of Probate litigation or Trust litigation
1. Elective share proceedings.
2. Pretermitted spouse proceedings.
3. Will contests due to undue influence, lack of capacity, or otherwise.
4. Construction of a will (i.e., determine what its words mean).
5. Interpretation or reformation of trust.
6. Contesting validity of a creditor’s claim.
7. Have a copy of lost or destroyed will admitted to probate.
8. Removal of the personal representative (sometimes referred to as the executor or executrix).
9. Removal of the trustee of a trust.
10. Breach of fiduciary duty by the personal representative or trustee.
Are any of these questions applicable to an Estate or Trust involving you?
1. Did a testator fail to leave anything to his spouse or leave only a token amount?
2. Was a will offered to the probate court as true last will and testament that has an apparently forged signature?
3. Was a will offered to the probate court that left everything to a person who had undue influence over the testator near the date of his death?
4. Was a will offered to the probate court that was signed when the testator lacked mental capacity to know his family members or understand what he was signing?
5. Was a will offered that is not the last will signed?
6. Was a handwritten will offered to probate?
7. Was will offered that lacks the signature of two witnesses?
8. Was a trust signed by the grantor and witnessed by two witnesses?
9. Are the terms of a trust ambiguous?
10. Is the trustee of a trust of which you are beneficiary apparently failing to obey the terms of the trust?
11. Is the trustee dealing with trust property as if it were his own?
12. Have important circumstances changed since a trust was written, leaving the disposition at least partly inappropriate under the new circumstances?
13. Has the tax law changed since a trust was written, so that tax planning inherent in the trust has become unwise and undesirable?
If any of these circumstances seems to apply to you, you may benefit from one of the remedies available via litigation. Consulting with a knowledgeable lawyer may lead to a solution to your problem.