Probate disputes: when all else fails
By Barbara Craig, Attorney at Law
When a person dies, disagreements about the distribution of their assets – money, property, real estate – are not uncommon. Hopefully, the deceased person created a will and/or trust which designates an executor or trustee and includes instructions about how the remaining assets will be divided, who will receive which assets, and other important details.
But even when there is a will and/or trust, disputes about the way the deceased person’s assets are managed, divided, and distributed still sometimes occur. Quite often, relatives or friends of the deceased person (also called the “decedent”) have an impression they are to receive certain assets, and are surprised to learn the gift left to them is significantly different than they expected. Some of these discrepancies can be resolved by mutual compromise. For example, it might be possible to reach an agreement to divide mom’s best china set between two children. But in the event where the controversial assets are more substantial and/or the parties involved cannot agree on a compromise, disputes can result in legal action.
Types of probate disputes
Generally, probate disputes involve one or more of the following factors:
- The validity of a will, trust, or trust amendment.
- Estate accounting.
- Control of joint accounts.
- Asset appraisal.
- Determination of heirs.
- Lack of mental capacity.
- Partitioning real property.
- Executor or trustee mistakes or breaches of fiduciary duty.
- Wrongful acquisition and/or misappropriation of trust assets.
- Trust term interpretations.
A closer look at common types of probate petitions follows.
Petitions against executors or trustees for wrongful acquisition or misappropriation of assets
This type of petition requests the probate court to consider whether assets were wrongfully obtained and/or misappropriated by the executor or trustee.
Petitions for court-ordered authorization of settlement on a decedent’s behalf
When probate disputes are settled, the settlement must be documented and the best way to achieve this is to obtain a court order memorializing the settlement.
Petitions for breach of fiduciary duty, to compel return of real property, for financial elder abuse, and/or for conversion of constructive trust
These petitions often result from allegations of breach of the fiduciary duties of the executor or trustee, or concerns that they took unfair advantage of the deceased person prior to their death.
Petitions by beneficiaries regarding will or trust term interpretations
Unfortunately, will or trust terms can sometimes be vague and unclear. This type of petition requests the probate court to rule on the terms which are in dispute.
Petitions to remove co-trustees and appoint a successor trustee
If co-trustees can’t get along or cooperate, preventing the trust from being managed properly, the probate court can be petitioned to replace the co-trustees with a designated trustee.
Ex parte petitions to suspend trustee powers and appoint a temporary successor trustee
An ex parte (Latin, meaning “for one party”) petition is a type of emergency motion in which one party requests the court to act without conducting a hearing with both parties present. An ex parte petition is generally filed due to a concern of imminent misuse or loss of assets. A court order resulting from an ex parte motion will generally be temporary, pending a regular hearing where both sides can present their arguments for consideration.
Petitions to invalidate a trust amendment
Trusts are commonly amended over time to reflect changes in one’s assets, family circumstances, and other life changes which occur between the time the trust was originally written, and the decedent’s passing. It is not uncommon for these amendments to be challenged by heirs or beneficiaries in several different circumstances, including:
- The decedent lacked the capacity to understand the amendment when it was written.
- The decedent was unduly influenced by someone to make the amendment.
- The decedent’s signature on the amendment was forged or is otherwise invalid.