Probate and Estate Litigation
Skilled Probate and Estate Litigation Lawyer Protecting Your Loved One’s Legacy
Table of Contents
FAQs
Frequently Asked Questions About Probate and Estate Disputes
I was a beneficiary under my family member’s will. While my family member was sick in the hospital, another family member had him execute a new will leaving everything to her. This new will is being submitted for probate. Is there anything I can do about this?
Yes, if you suspect that your aging family member executed a new will while incapacitated or otherwise not physically or mentally well, you may be required to sue your family member by filing a petition in the Probate Court seeking a finding that the new will be deemed void because it was executed under undue influence. There are other pertinent causes of action that could be filed depending on the circumstances of your case.
I do not believe the executor of my family member’s estate is reporting all assets belonging to the estate in the required accountings and I have concerns that assets are being removed from the estate. Is there anything that I can do?
Yes, if you suspect the executor is not performing his or duties for the estate, you can file a petition and motion in the Probate Court compelling the executor to perform his or her duties or to remove the executor. This will require a hearing on the issues. There may be other claims that could be asserted against the executor for failing to perform his or her duties, including conversion of estate assets.
I am a beneficiary of a Trust and the Trustee refuses to provide me accountings of Trust assets. Further, I have found evidence that the Trustee has transferred Trust assets to himself. What can I do?
Unless otherwise provided in the Trust document, a Trustee is required to provide at least annual accountings of income and expenditures related to the Trust. A beneficiary is supposed to have sufficient information to know all Trust asset values, income and expenses. The failure of a Trustee to provide this information may be grounds to seek court intervention. Further, a Trustee should never transfer trust assets to himself unless for valid reimbursement associated with a Trust expense. Trustees are not to engage in self-dealing, rather, their sole responsibility is to the Trust and the Trust beneficiaries. Conversion of Trust assets may be grounds for removal of the Trustee and potentially reimbursement of Trust property, and other related relief.
What Is Probate and Estate Litigation?
We always want to believe that when our loved ones grow older, they will live peacefully and will pass on knowing that they have made successful arrangements for the disposition of their hard-earned assets.
Unfortunately, this is not always the case as many people can be taken advantage of by executing certain legal documents that may be used to financially exploit them, leaving their rightful beneficiaries with nothing.
When an individual is appointed as an Executor or Personal Representative of an estate by a Last Will and Testament, as an agent by a Power of Attorney, or a Trustee of a Trust, he or she is deemed a fiduciary. South Carolina law imposes a duty of care in these types of relationships, meaning that they have a duty to act in the best interest of the Estate, their Principal, or the Trust.
When an Executor of an Estate violates the duty imposed upon him or her, including failing to properly administer the estate or to marshal and account for estate assets among other duties, the beneficiaries can hold him or her accountable. This may include removal as Executor or seeking personal liability for the conduct causing damage to the Estate.
It is not uncommon for an individual to cause a vulnerable adult, including one who is incapacitated or elderly, to sign any one of a combination of the above estate documents to the financial benefit of themselves, wrecking the vulnerable person’s estate plan. This is commonly seen in interfamilial situations or when an elderly person remarries.
These influenced transactions may be subject to nullification and damages assessed against the person who breached this fiduciary relationship. In many scenarios, deeds to property may be executed or signature cards on banking accounts may be signed adding the individual who is influencing the vulnerable person as an owner or account holder. These influenced transactions may be subject to reversal through appropriate litigation.
In other situations, individuals may fail to execute a Last Will and Testament or may make several revisions and updates to their Will so that surviving loved ones are without knowledge of which document is truly the last Will executed. This can result in very messy litigation as many potential beneficiary interests are at stake.
Common Disputes in Probate and Estate Cases
Filing the Petition
In these cases, you must file a Summons and Petition in the Probate Court alleging various causes of action designed to return the missing or stolen assets by the wrongdoer. That person will be personally served with the action to commence the case.
An initial hearing may be required to request the removal of a fiduciary who has wronged the estate but is still overseeing the property until ordered not to do so. He or she may also be required by court order to account for missing assets.
Discovery is required including requiring the fiduciary to answer questions and produce documents, and subpoenas can be issued to obtain documents from third parties.
In cases involving undue influence of vulnerable adults, it may be necessary to seek and obtain their complete medical files to determine whether he or she had any medical diagnosis that could have affected the ability to understand what they were signing when they signed documents. A medical expert may be necessary to render an opinion on these health conditions and how it affected the vulnerable person’s ability to understand what they were signing.
Our Legal Services for Probate Litigation
We guide clients through the process of recovery of missing assets and potentially voiding these influenced transactions.
Guardianship and Conservatorship
A guardianship is a court appointed person responsible for making healthcare and other decisions concerning your person should you be incapacitated.
A conservatorship is a court appointed person responsible for making financial decisions and paying your bills should be incapacitated.
Incapacity may include drug use or other intoxicants, dementia, or other mental health disease that affect your ability to handle your affairs.
Both a guardian and conservator may be appointed if you do not have a Durable Power of Attorney or Health Care Power of Attorney in place designating agents to handle your affairs for you. A guardian or conservator may also be appointed if your agents are breaching their fiduciary obligations to you. For instance, if your agent under your Power of Attorney is paying his or her own bills with your money or converting your assets, this may be a reason to have a conservator appointed because and to remove your agent, particularly if you are incapacitated and unable to execute a new Power of Attorney.
This litigation is expensive and it requires that a physician examine and execute a notarized document attesting to your incapacity 30 days prior to filing a petition in the probate court. Once filed, the court will appoint an attorney and a Guardian ad Litem for you to ensure your rights are protected throughout the proceedings.
After an initial hearing which will typically involve the temporary appointment of a guardian and conservator, discovery or evidence gathering may ensue.
The party seeking a guardian or conservator on your behalf may be required to bear the expense initially for the Guardian ad Litem, court appointed attorney, or any expert employed to examine the person. The court may order at the end of the case that the Guardian ad Litem or court appointed attorney be paid from your assets if there are sufficient funds to do so.
If multiple individuals are vying to be appointed as your guardian or conservator, this can also add to the highly contested nature of the litigation and expense.
Why You Need an Estate Litigation Lawyer
An estate litigation lawyer is necessary to obtain and properly analyze financial and medical records necessary to prove your case. These cases are typically highly contested and will often require court hearings to address the removal of fiduciaries, to seek accountings of assets, and related relief.
These cases may require expert opinions from medical professionals or forensic certified public accountants to ensure missing assets are properly accounted for.
Challenging a Will or Trust
A Will or Trust can be challenged if there is a question of the capacity of the individual to sign the document at that time of execution. These documents can also be challenged if the person is deemed a vulnerable adult and executes a new Will or Trust that has terms peculiarly different than those of their previous estate plan.
In such cases, it is important to know the facts and circumstances of the execution of the new Will or Trust. Did an overbearing family member schedule the meeting with the lawyer and bring the individual to the office and have him or her execute the new documents that are completely different than the previous estate plan? Has the family member isolated the vulnerable adult from family or friends such that they had no access or visitation privileges? Does the vulnerable adult have a diagnosis of dementia or other mental health decline that could affect his or her ability to understand what is being signed?
There also may be questions about whether the Will submitted for probate was truly the last executed Will of the individual. If a later will was executed, this act revokes the previous Will so it is necessary to locate the last executed Will for the probate process. A Will submitted for probate may be challenged on the ground that it is not the last executed Will.
These and other factors must be considered in determining whether to challenge a Will or Trust.
Steps in Filing a Legal Challenge
A proceeding to contest a probated Will may be commenced within the later of eight months from informal probate or one year from the decedent’s death. The contesting party must be an interested person in the estate, meaning he or she must be a beneficiary of the estate. It requires the filing of a summons and petition requesting certain relief which may include requesting the Court to set aside an informally probated will or to prevent the informal probate of a Will or for a finding that the decedent died intestate, or without a Will. You can also seek the formal probate of Will, as well as the request for the appointment of a personal representative.
For a Trust, generally, a beneficiary has one year after the date the beneficiary or representative of the beneficiary was sent a report from the Trustee which adequately discloses the existence of a potential claim for breach of trust against a Trustee. The report must provide a beneficiary sufficient information about income and expenses associated with the Trust.
In other situations in which the above does not apply, there is a three-year limitation after the first to occur of: the removal, resignation or death of a trustee, termination of a beneficiary’s interest, or termination of the trust.
If a Trustee provides a proposal for distribution of a Trust estate to the remaining beneficiaries, a beneficiary generally has 30 days to formally object to the proposal for distribution.
Therefore, it is important that you promptly seek the advice of competent counsel to ensure that your rights are protected.
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My late father, Jan Warner, was an accomplished and widely known family law attorney and nationally syndicated author in South Carolina, so this area of law runs in my blood. It is all I have ever known, and I cannot imagine doing anything else.