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Many probate matters are routine and run-of-the-mill. Someone dies. Their will is probated (filed and administered according to its terms in Probate Court). Assets are distributed. Bills are paid. While the goal of most will-drafters is to clearly set forth their intentions with respect to a distribution of any remaining assets, sometimes things don’t work out that way. Or there is some dispute as to what the testator intended, whether they had the ability to do what they tried to do, and what the personal representative is to do (or simply does) as a result. While many assume that whoever serves as the executor or personal representative has wide latitude in fulfilling and carrying out their duties, that is not necessarily the case. Those adversely affected have the right to challenge those conferred or vested with authority over a deceased person’s estate. And when those types of disputes arise, litigation is the way they are resolved.
What can complicate things in a probate case?
Sometimes there is more than one will. Though the most recent will generally trumps an older one, that is not always the case. For example, sometimes there is a question of whether the newest will was the product of fraud or if the decedent had the capacity to execute the newer will. Rarely do all family members and beneficiaries agree on the decedent’s state of mind or the circumstances surrounding the will. Things can also get complicated when the will is unclear or there is some discretion given (or taken) by the personal representative. Again, litigation is likely to arise when one heir thinks someone else is getting more than they deserve. And when someone is being treated inequitably, being able to litigate to right that wrong is a good thing.
Trusts are much like probating estates.
Many trusts are created upon the death of someone. Some people create a trust in their will while others may create a trust before they die in anticipation of their death. In a trust, a trustee is appointed to handle property given to the trust for the benefit of others. The same types of questions and complications that can arise with a will often arise in trusts, whether they involve cash assets or investments, corporate stock, real estate, mineral interests, oil and gas leases, timber leases, or other assets.
Most probate lawyers are good at probate matters – when things are cut and dry. They are good at drafting wills and trusts. They are helpful when it comes to administering estates and trusts – when there are no disputes. They know the ins and outs of what the law requires for an estate to be administered and the tax matters unique to trusts. But they aren’t litigators. They don’t routinely do discovery, take depositions, examine witnesses, draft legal briefs, make oral arguments, or try cases. And most litigators aren’t familiar with the unique statutory and case law applicable to estates and trust litigation.