Frequently Asked Questions About Trusts & Estate Litigation

Estate litigation involves legal disputes concerning a deceased person’s assets and their distribution according to their will or state laws (in the absence of a will). Common reasons for estate litigation include:

• Will Contests: Challenging the validity of a will due to forgery, undue influence, or lack of testamentary capacity (the mental ability to create a will).
• Breach of Fiduciary Duty by the Executor: Similar to trust litigation, the executor has a duty to act in the best interests of the beneficiaries. If they breach this duty, beneficiaries may sue.
• Disputes Over Asset Distribution: Beneficiaries may disagree with how assets are distributed according to the will or intestacy laws.
• Missing Heirs: If there are missing beneficiaries, the court may need to be involved to locate them and ensure proper distribution of assets.

Estate litigation can be emotionally charged and time-consuming.

Both trusts and wills are estate planning tools, but they serve different purposes. Wills dictate how your assets will be distributed after your death and go through probate, a court process that can be time-consuming and public. Trusts, on the other hand, can avoid probate and allow for more control over asset distribution. Here’s a simplified breakdown:

• Choose a Will If: You have a straightforward estate and want a simple way to distribute assets.
• Choose a Trust If: You want to avoid probate, manage assets for beneficiaries who may not be financially responsible, or minimize estate taxes.

A living trust is a legal arrangement where you transfer ownership of assets to a trustee who holds them for your benefit while you’re alive and then distributes them according to your wishes upon your death. Benefits of a living trust include:

• Avoiding Probate: Assets held in a living trust generally avoid probate, saving time and money.
• Management During Incapacity: If you become incapacitated, the trustee can manage your assets according to the trust document.
• Privacy: Unlike wills, which become public during probate, trust documents remain private.
• Flexibility: You can modify or revoke a living trust while you’re competent.

Living trusts offer significant advantages, but they may not be suitable for everyone.

There are two main types of living trusts: Revocable and Irrevocable.

• Revocable Trust: You retain control over the assets in the trust and can modify or revoke the trust at any time. These trusts don’t generally offer tax benefits.
• Irrevocable Trust: Once assets are transferred to an irrevocable trust, you generally relinquish control. These trusts may offer tax benefits, such as sheltering assets from estate taxes.

Choosing between a revocable and irrevocable trust depends on your specific goals and tax situation.

If you die without a will (intestate), your state’s intestacy laws will dictate how your assets are distributed. These laws typically distribute assets to your spouse, children, parents, or other relatives in a predetermined order.

Intestacy can lead to unintended consequences:

• Unwanted Outcomes: The distribution may not align with your wishes.
• Family Conflict: Disputes may arise among beneficiaries.
• Potential Delays: The court process to determine heirs can be lengthy.

Creating a will allows you to control your assets’ distribution and avoid these potential issues.

The duration of trust and estate litigation can vary significantly depending on the complexity of the case. Factors influencing the timeline include:

• Nature of the Dispute: Simple matters like interpreting a clear trust provision may resolve quicker than complex issues like fraud allegations.
• Discovery Process: Gathering evidence, such as financial records and witness testimonies, can be time-consuming.
• Settlement Negotiations: Many cases settle before trial, but reaching an agreement can take time.
• Court Availability: Depending on the court backlog, waiting for hearings or trial dates can extend the process.

Trust and estate litigation can be expensive. Costs can include:

• Attorney Fees: Attorneys typically charge hourly rates or a retainer. Complex cases with extensive litigation will incur higher fees.
• Court Costs: Filing fees, transcripts, and other court-related expenses can add up.
• Expert Witness Fees: If expert testimony is required (e.g., financial analysts), their fees must be factored in.

The cost can be shared among beneficiaries or borne by the estate, depending on the case. Discussing fee structures with your attorney upfront is crucial.

While not all disputes can be prevented, there are steps to minimize the risk of litigation:

• Clear and Comprehensive Estate Planning Documents: A well-drafted will or trust that clearly outlines your wishes reduces ambiguity and potential challenges.
• Open Communication with Beneficiaries: Discussing your estate plans with beneficiaries can help manage expectations and avoid misunderstandings.
• Choosing the Right Fiduciary: Select a trustworthy and competent executor or trustee who understands their responsibilities.
• Accurate and Detailed Records: Maintaining clear records of assets and liabilities simplifies the administration process.

If you have questions or concerns regarding trusts, estates, or potential disputes, consulting with an attorney specializing in trust and estate law is highly recommended. An attorney can:

• Review Your Estate Planning Documents: They can analyze your existing will or trust and identify any potential issues.
• Advise on Dispute Resolution: If you’re facing a potential legal battle, they can explore options for resolving the dispute outside of court or guide you through litigation if necessary.
• Protect Your Rights: An attorney can ensure your rights are safeguarded throughout the process.

Estate planning and trust and estate litigation can be complex. Seeking legal guidance from a qualified attorney is essential to navigate these matters effectively.