Do You Need an Attorney for a Probate or Trust Dispute?
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Is your family fighting over assets, property or the details of probate administration? It’s sad but true that money can bring out the worst in people. You’re a beneficiary, executor or individual who has questions. Don’t be embarrassed to call. We’ve helped hundreds of clients during difficult, emotional times. We’re here for you.
Is your family fighting? You may be embarrassed to say “yes”. We understand. Don't think it's limited to just you and yours... it's everywhere. Sad but true.
Maybe you're a beneficiary who’s getting the runaround from an executor, trustee or personal representative. They don't answer your calls, letters or worse, haven't sent you your money.
You may be embarrassed but you know you need help and you need the help of an experienced probate and estate attorney who knows estate, trust and probate law. You also need a tough probate litigator to deal with difficult family members or an unreasonable executor/trustee, or creditor.
Final administration of an estate involves many things: probate of the estate, collection of the assets, calculation and payment of estate taxes, and the distribution of remaining assets. A knowledgeable and experienced estate lawyer and probate litigation attorney familiar with New Jersey probate law can facilitate this difficult process in a timely and effective manner. It's especially important if there are questionable circumstances such as testamentary capacity to do a will or to appoint a power of attorney and misuse of the power of attorney by the person appointed, undue influence, conflicts of interest and self dealing.
Will and Trust Contests
It's an old tale. Ever since the ancient laws of primogeniture (eldest son gets it all) were swept away by the personal right to make a will, heirs have objected to even the best made wills and trusts. Conflicts can arise before or during the administration of an estate or a trust. The potential types of such disputes are far too numerous to list here and are limited only to your imagination. Here are a few examples:
Validity
Everybody has the right to dispose of his or her property as they wish, without consideration for the wishes or opinions of family, friends or anyone else. It is possible, however, to set aside a will or trust. A person contesting the estate plan must prove that at the time it was signed, the deceased lacked the requisite mental capacity, or that the will or trust was procured as the result of undue influence, fraud, or duress. Also, some wills or trusts are invalid because they were not properly executed. For example, wills must be signed before two witnesses, except for holographic wills written in the hand of the testator (the person whose will it is). If the witnesses signed the will after the fact, and did not actually see the decedent sign the will, then the will may be thrown out as invalid.
When that happens, if there is a valid prior will or trust, then the court will go back to the earlier document and distribute the decedent's assets in the manner it provides. If there is no valid prior will or trust, then the decedent's estate will pass through probate as if he or she died without a will at all.
There is one thing to watch out for. Many wills and trusts have "no-contest" clauses that are designed to discourage contests. Basically, if you are an heir and you contest the validity of the will, and you lose, then you may be disinherited by operation of the no-contest clause. Tread carefully.
Breach of Fiduciary Duty
Executors and trustees owe a fiduciary duty to the heirs and beneficiaries of the decedent. A fiduciary duty consists of a duty of good faith and fair dealing, and a duty of competency. A fiduciary must always consider the best interests of the trust or estate before his or her own interests. When an executor or trustee profits from his or her position (other than earning agreed-upon compensation), they have in all likelihood breached their fiduciary duty. A failure to safeguard trust or estate assets that causes a loss to the heirs and beneficiaries may also be a breach of fiduciary duty. The heirs and beneficiaries damaged as a result, can file a lawsuit against the executor or trustee. Under some circumstances, the executor or trustee can be held personally liable for the loss.
Failure to Account
Trustees and executors have a duty to keep all estate assets separate and identifiable, and to account to the beneficiaries for all monies coming into and going out. For probate estates, the court will not allow probate to end until a satisfactory accounting is complete. If the trustee of a trust fails to provide a proper accounting, the beneficiaries can file a petition seeking a court order compelling the trustee to do an accounting. Trustees who fail to properly account for their actions may be removed by the court.
The court will order them to account if they do not do so, unless all of the beneficiaries agree to waive such an accounting. If the executor or trustee has failed to keep records, or if they have failed to keep estate property separate from their own, a breach of their fiduciary duty is presumed.
Contract to Make a Will
Frequently, people make promises they never keep. Some of these promises relate to wills and trusts. Here's a common one, "Someday, son, all this will be yours." So what does the son do when dad dies without fulfilling his promise? Sometimes, it is possible to enforce what the courts call a "Contract to Make a Will."
As a general rule, agreements to make a bequest of property after death must be in writing. If they are not in writing, such agreements are unenforceable. There is one exception to this rule, where the person to whom the promise was made changed his or her position in reliance of the promise, and suffered a detriment as result.
For example, Mom promises to one of her daughters that if she moves in and cares for mom at home for the rest of her life, then that daughter would inherit the home. Then, the daughter gives up her job, sells her home, and takes care of mom around the clock for two years, giving up opportunities for employment and a social life. But after mom's death, the dutiful daughter discovers that mom's will divides mom's entire estate, including the home, between all six children, including the deadbeat son who hasn't spoken to mom in seven years. In this case, the daughter may have a valid claim against mom's estate for a breach of contract.
Probate Litigation Lawyers Assist in Will Contests
The fact that a person leaves a will does not guarantee that property will be distributed according to the expressed terms in the will. A court generally must provide an opportunity to allow others to object to the will, and a challenge may be brought by anyone who feels the will is inaccurate or invalid in some way. These types of cases are difficult and emotionally charged, so it's important to find an attorney with whom you feel comfortable and who is knowledgeable about such proceedings. The probate litigation attorneys at Hanlon Niemann are just the attorneys you need.
Hanlon Niemann attorneys litigate tough family disputes. We're experienced probate trial attorneys with an extensive background in probate law and litigation.
But we don't litigate just to litigate. We'll first try to mediate the disagreement in a practical and responsible way, preferring mediation and consolation where possible consistent with our client's rights, goals and instructions.
Call us today!
If you find yourself in a tough situation, speak to our managing partner, Fredrick P. Niemann, at 732-863-9900 or e-mail him at fniemann@hnlawfirm.com. He'll patiently and confidentially guide you through your personal and family legal matter.