Common Estate Disputes
Aug. 29, 2023
We’ve probably all seen those TV dramas where some austere-looking individual sitting in an oak-paneled room behind an impressive desk reads out someone’s last will and testament to a seated audience of heirs and hopeful beneficiaries.
Partway through the reading and a gasp or two arises from the assembled crowd. “Why am I being left out?” “Why did (fill in the blanks) get everything or almost everything?” Disbelief rings through the audience, at least among those who feel cheated or completely left out.
Nice fictionalized drama, to be sure, but contests to one’s last will and testament, or even to a living trust, are not that uncommon. The best way to head off disputes at the pass, so to speak, is to create your estate plan through an experienced attorney who can then vouch for your intentions and the legality of your will or trust when you’re gone.
If you’re in or around Farmington Hills, Michigan, and you want to start your estate planning, or review what you have to possibly update it and ensure its validity, contact the estate planning attorney at Steven L. Rotenberg, PLLC.
With more than two decades of experience, Steven L. Rotenberg can advise you on the best options for ensuring peace of mind for you and your loved loves as you move through life. He also proudly serves clients in Monroe, Pontiac, Mount Clemens, and the metro Detroit area.
Common Disputes Regarding Estates
A last will and testament must go through probate court proceedings, which are designed to make sure that taxes and debts are resolved before the estate is distributed to named beneficiaries. The personal representative named in the decedent’s will becomes the executor of the estate and carries out the duties of probate under court supervision. The executor has a fiduciary responsibility to perform these tasks in a non-self-serving way.
The executor and court may face several different challenges when administering the decedent’s estate, including but not limited to:
BLENDED FAMILIES: Children from a previous marriage who feel left out of a will from a parent who remarried may challenge the will, perhaps alleging undue influence (see below) or just from the standpoint of being logical heirs to the estate or parts of it. The same could hold true for stepchildren if left out.
CHALLENGES TO THE VALIDITY OF THE WILL: A will in Michigan must be witnessed by two competent persons, and the testator (who creates the will) must be at least 18 years of age and of sound mind. A holographic will, written in the testator’s own handwriting, need not be witnessed but must be signed. A will can be challenged on those grounds, as well as not being the latest version of the decedent’s will. In other words, the will has been superseded. This is where having the will created and overseen by an attorney is important. The attorney can attest that the will is the latest version.
MENTAL CAPACITY: This is another take on the validity of a will—asserting that the testator lacked the mental capacity to create a valid will. This can be hard to prove because even with dementia, an individual can have enough perception of reality and mental acuity to create a will.
UNDUE INFLUENCE: Someone took advantage of the testator and exerted persuasion to get himself or herself preferential treatment in the will. This is often accompanied by a mental incapacity inference. The testator was taken advantage of because of old age or mental limitations.
EXECUTOR MISTAKES OR MALFEASANCE: This is not something the executor would handle, but the court itself would examine if a qualified heir or beneficiary charges the executor with self-profiting or any other misdeed, such as breaching their fiduciary duty obligations.
Living trusts do not go through probate court proceedings since the decedent’s assets were previously transferred into the trust. The successor trustee, after the death of the grantor of the trust, will oversee debts, taxes, and distributions to beneficiaries.
Contests to the trust, however, are still possible, and the trustee himself or herself can be questioned on whether they are breaching their fiduciary duty. When there are challenges, then the probate court where the decedent lived will listen to all parties and make a ruling.
Remedies for Disputes
In probate, all disputes will end up in the court’s hands if the heirs, beneficiaries, and executor cannot resolve matters on their own. The same holds true with a trust.
In either case, having a probate and estate administration attorney involved helps resolve the disputes before they get completely out of hand and the court must make a definitive ruling, which may not prove satisfactory to any of the parties involved.
Understand Your Options
The best prevention for disputes to a will or a trust is to create ironclad legal documents with an attorney who can retain all copies of the documents, even if there are various revisions along the way. In the Farmington Hills area of Michigan, and in adjoining cities and communities, rely on the estate planning and estate administration attorney at Steven L. Rotenberg, PLLC.