It is common knowledge that Americans have become extremely litigious and that our court system is floundering in a sea of civil cases. What is less well known is that the court activity includes not only tort claims such as personal injury, but also lawsuits involving wills and trusts.
Practitioners in the field of estate and trust litigation have seen a dramatic increase in recent years in lawsuits concerning probate estates and trusts, and the related areas of conservatorships and guardianships.
With all this litigation, a common question is, how can I prevent litigation over my estate plan?
The answer is, you can't.
Lawsuits can be filed by anyone and there is no sure way to avoid them. In estate planning, it is also impossible to anticipate every issue that could give rise to a lawsuit. There are, however, ways to reduce the likelihood of litigation.
What Are These Lawsuits?
Estate and trust litigation encompasses claims filed in a type of state court often referred to as probate court. These lawsuits most commonly challenge the validity of a will or trust, often by focusing on whether the signer was mentally competent and/or "unduly influenced" by someone into signing.
Trust and estate lawsuits can also seek to remove an executor or trustee on the grounds they acted improperly. This usually involves allegations that they breached fiduciary duties, such as by improperly taking trust property for their personal use, favoring certain beneficiaries or mishandling investments.
Probate courts may also be asked to interpret a language ambiguity. For example, if a will leaves "the vacation home" to a beneficiary, does that mean the house at the beach, the condo in Aspen or the old fishing cabin?
Finally, probate courts may be asked to settle issues related to conservatorships and guardianships that assist someone deemed incapable of handling their personal or financial affairs. Such matters may be contested either because the subject opposes having someone else take over for them or because a dispute arises about who should serve as the fiduciary.
Find A Qualified Attorney
For people with substantial wealth, the first step in drawing up a legally sound estate plan is to have an experienced lawyer prepare the document. The underlying documents must be prepared with care to ensure the language is clear, the trustor's wishes will be carried out and the chances of litigation are lessened. Taking shortcuts in the planning process is asking for trouble. The courts are full of cases involving large estates of people who wrote their own wills by hand, used forms they bought at a store or over the Internet, or who used a "low-cost" estate planning service with little or no legal expertise.