What Is Probate and Trust Litigation?
In its simplest form, probate and trust litigation is about what happens to a person’s assets when he or she dies, who gets control of the assets, and who ultimately gets to receive the assets as an inheritance. The difference between probate litigation and trust litigation is the difference between having a family trust or not. If somebody dies and didn’t write a will, that goes to probate. If someone
Other times, the dispute can come from the fact that someone who wanted to inherit under the will or trust thinks that their parent, or the person who passed away, was taken advantage of. And so when your mom signed a new will or trust agreement on her deathbed, giving everything to another sibling or giving everything to a caregiver, was that proper? When that happens, the two main things that get discussed are these: Was the person
who passed away competent when he or she changed the will/trust? And by competent, did he or she have their senses and the adequate mental capacity to really understand the change that they were making? And then the other issue to consider is if that person was taken advantage of “undue influence.” Undue influence is a form of fraud and is where a person who’s in a weaker, vulnerable position is taken advantage of by someone who has a lot of ability to pressure them.
dies and only left a will, that goes to probate. On the other side, if somebody took the time, for the benefit of his or her family, to sit down with an estate planning attorney and prepared a trust and/or will, then everything is in the arena of the trust. And if there’s a dispute about the trust, then that would be called trust litigation or a trust dispute. Now when you’re in probate litigation or trust litigation, what are you fighting about? There are two main things that might be fought about. The first is who should be in charge of the stuff. In probate
When we get questions about probate and trust litigation, every situation has its own unique circumstances. So the best thing you can do for yourself and your loved ones,
court, who should be the executor or special or representative, if there was no will? With a
trust, who should be the trustee? And sometimes what will happen is everybody will agree that so-and-so was named to be the executor, named to be the trustee. But people start wondering if so-and-so is acting in a proper way and whether they’re being diligent in taking care of the things that need to be taken care of, or whether they’re maybe perhaps misusing the assets for their own personal gain. The second main issue that comes up in probate and trust litigation, of course, is who gets the stuff. And usually, but not always, the will — or the statute if there’s no will — spells out who gets what and in what order. The trust will also spell out who gets what. There can be a dispute just because two reasonable people reading the will or the trust agreement come to different conclusions.
if you have questions, is find an attorney like our firm that who practices in probate and trust litigation and give your specific questions to them, explain your situation, and get an understanding of what the best course of action is for you and your loved ones.
Feel free to give us a call at (775) 448-6070.
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