Estate and Trust Litigation

There are multiple types of disputes that arise in the administration of an estate or trust that require litigation. Some examples include Will or Trust contests, breach of fiduciary duty, rights of creditors or claimants to estate’s or Trust’s assets, trust reformation and trust modification.

If you, as a beneficiary, suspect that a Will or Trust does not reflect the wishes of the deceased, you may have a right to challenge the proceedings in court. Similarly, if you believe a personal representative or trustee is mismanaging the assets of the estate or a Trust, you may have standing to allege breach of fiduciary duty. On the other hand, a personal representative or trustee is entitled to a vigorous defense against accusations of incompetence, mismanagement, or unlawful conduct.

Therrel Baisden, LLP provides advice and counsel to help you and your family understand the estate and trust litigation landscape and work toward resolving your estate or trust litigation dispute.

WILL AND TRUST CONTESTS
There are several bases for challenging a Will or Trust, including:

• Lack of capacity — This ground alleges that the testator or settlor was not of sound mind at the time the will or trust was executed. To execute a valid Will, a person must understand the nature and extent of their property to be disposed, their relation to those who would claim through their Will, and an understanding of the practical effect of the Will. Similarly, the person creating a Trust, known as the “settlor”, must be of sound mind in order to execute a valid Trust.
• Undue influence — A Will or Trust may be invalid if it is the product of someone other than the testator’s or settlor’s decision making. Oftentimes, a person with access to and power over the testator or settlor uses emotional manipulation to gain special consideration in the Will or Trust. Many estate and trust disputes stem from suspicions that a particular individual took advantage of the declining health or mental capacity of the deceased to insert themselves into the Will or Trust to the detriment of the rightful heirs. The court looks very harshly on this type of undue influence. However, it is important to note that disappointment is not grounds for an heir to challenge a will or trust. All challenges must be supported by reliable evidence.
• Lack of formalities – Florida law requires specific procedures to be followed in order for a Will or Trust to be validly executed. If the formalities are not followed, the estate planning instrument will be deemed invalid and void.
• Void for vagueness — This ground asserts that the terms of a will or trust are open to conflicting interpretations and it is impossible to know which interpretation is correct. A challenger can prevent part or all of the Will or Trust from being implemented.

BREACH OF FIDUCIARY DUTY IN ESTATE SETTLEMENT AND TRUST MANAGEMENT
The personal representative of a Will and the trustee of a Trust is a fiduciary with a legal duty to manage the assets of the estate or Trust according to the testator’s or settlor’s wishes and for the benefit of the beneficiaries. The fiduciary must perform at a professional standard so that assets are not lost due to waste, fraud, misallocation or mismanagement. Beneficiaries may challenge deliberate or negligent misconduct and demand a full accounting. Our attorneys have vast experience on both sides of Trust and estate controversies. Therrel Baisden, LLP has close associations with forensic accountants who can render accurate assessments of asset management and help you assemble evidence to prove or rebut allegations.

TRUST REFORMATION AND TRUST MODIFICATION
A Trust may be modified or reformed due to mistakes in law or in fact, or to conform the Trust to the settlor’s intent. Additionally, Trusts may be modified or decanted to achieve objectives that do not diverge from the settlor’s intent.

OTHER COMMON TYPES OF ESTATE AND TRUST LITIGATION

• Creditor claims and disputes
• Removal of Personal Representative or Trustee
• Surcharge a Personal Representative of Trustee
• Enforcement of Prenuptial Agreement, Postnuptial Agreement and Marital Settlement Agreements

DON’T EXPECT SUCCESS IF YOU HANDLE OBJECTIONS YOURSELF
Many people hesitate to hire an attorney because they wish to keep a family dispute within the family. However, the court may treat your suspicions lightly if you raise them without a professional presentation and a firm basis in the law that an attorney can provide. Moreover, a seasoned attorney who has been through such negotiations before is likely to produce a settlement that satisfies all parties and allows the proceedings to move forward at less cost to the estate.

Contact Therrel Baisden, LLP, an established trust and estate litigation law firm in Florida, to answer your Estate and Trust Litigation questions and concerns. For more information or to schedule a consultation, contact us at 305-371-5758.