Following a relative’s death, his or her Last Will & Testament will need to be probated, or if the relative died without a Will, the estate will nonetheless need to be administered in probate court. This may lead to any number of the issues which require the assistance from an experienced probate lawyer by an heir, beneficiary, executor, administrator or trustee, including:
- Will Contests (Disputes over which Will governs)
- How the Estate should be distributed
- Who should be Executor or Administrator
- Lost Wills
- Questions about the relative’s testamentary capacity or unsound mind
- Circumstances of Undue Influence upon the relative
- Circumstances of Fraud upon the relative
- Breach of fiduciary duties
- Claims by creditors of the relative
- Surety and bonding matters
- Life insurance claims
- Trust registration
- Claims against Trustees for mismanagement or other breach of fiduciary duty
Will contests can arise from almost an unlimited set of circumstances, although there are some limitations, known under the law as standing, which control who can make a Will contest. A Will contest is not just limited to situations when the original Will cannot be found. Will contests may focus on lack of the decedent’s testamentary capacity when he or she made the Will. There may be circumstances of undue influence, fraud, or delusion/unsound mind, or other facts which demonstrate the Will does not reflect the actual intent of the testator. Sometimes individuals who are beneficiaries under the Will occupy a confidential or fiduciary relationship and exert force, coercion or other contrivances to unduly influence the maker of the Will.
Lost Wills and Will contests are just a couple of the various disputes that may arise in the process of administering an estate in Probate. Others often include creditors claims, which if substantial enough can require a separate lawsuit of their own in circuit court, and suits by heirs or beneficiaries against appointed administrators or executors who have mismanaged or otherwise committed waste to the Estate assets in Probate. Similar claims may be made against Trustees who have mismanaged a trust estate regardless of whether it is being administered in Probate. Administrators, Executors and Trustees generally will owe some level of fiduciary duty, and potential claims may arise for breach of fiduciary duties. Sometimes these claims are meritless and require and aggressive defense. Anyone who has been appointed or undertaken responsibilities in which a certain level of confidence has been reposed in them may be a fiduciary, even if not properly or formally appointed by the Probate court, in some instances. If appointed, a bond may be secured by some form of insurance, sometimes called a surety, which may provide certain liability insurance coverage for the fiduciary, including the costs of defense, and might be a potential fund for recovery by a claimant.
If you are an heir, beneficiary, executor, administrator or trustee, with legal problems in the Probate arena or otherwise issues related to fiduciary responsibility which you would like to discuss, please contact the office.