trusts-and-willsA trusts, wills and estates lawyer can help you protect your assets and provide for your loved ones following your death.  Furthermore, estate planning is the process through which you make a plan for what will happen to your estate following your passing.  Given the changing nature of life and our circumstances, it’s important to establish and periodically reevaluate your trusts, wills, and estate planning with the help of a qualified attorney.  If you have questions about these issues, contacting a qualified attorney is the best way to legally declare your wishes and protect your interests.

While wills, trusts and estate planning are intended to protect our interests and simplify financial and property issues after we die, disputes can arise among family members or other parties involving wills, trusts, and estates.  When such disputes occur, it is also important to seek the help of a qualified and competent attorney who can protect your legal interests.  Please contact us to learn more about your legal rights and options in a dispute involving trusts, wills, and estate planning.

We all do our best to protect our future and the futures of those we love in numerous ways throughout our lives.  From obtaining health and life insurance, to contributing to retirement and other funds, we protect our health and livelihood as well as those of our kin.  While it is often difficult to consider our own mortality and dwell on what will happen after we die, it is very important to establish our desires for our property and our loved ones after we pass on.

Please read on to better understand the basics about how wills, trusts and estate planning work and how to protect yourself and your loved ones.  We will also cover situations where property and other issues are contested following an individual’s death, which may lead to litigation.

What is Estate Planning?

An estate is all of the real estate and personal property (i.e. vehicles, household items, bank accounts) owned by a person prior to its distribution through a trust or will.

Estate planning distributes all of this property to an individual’s heirs  or other designated inheritors upon their passing and helps ensure that one’s wishes regarding their estate are carried out properly.  Additionally, estate planning can help to minimize taxes related to the estate.

It is wise to update your estate plan every few years or after the occurrence of significant life events such as marriage, divorce, the birth of a child, or adoption.  Moreover, tax law modifications, changes to your financial situation, or adjustments to your personal wishes may also require that you look again at your estate planning.

What is a Will?

A will is a legal document in which a person can declare who will inherit their property after their death.  Furthermore, it allows an individual the ability to designate a legal guardian for their children in the event of their passing.  In a will, a person will typically name an executor, or the individual they wish to have carry out their wishes.

Without a will, a person is unable to legally express these wishes and ensure they are carried out.

Do I Need a Lawyer to Draw up a Will?

While a lawyer’s services are not always essential in drawing up a will, it is a good idea to seek help from a qualified attorney to ensure your rights and interests are protected.  This is the best way to secure that your will will be considered valid and upheld in court following your passing.

Furthermore, if any of the following pertain to you, it is especially wise to seek legal counsel when drawing up a will:

  • You expect to leave behind numerous assets and/or those of great value, as these might be subject to estate or probate tax.
  • You wish to make complex plans for your assets, as opposed to simply naming people who will inherit your property.  For example, if you want to leave a home to your current partner, but have it pass to children of a previous marriage after your current partner dies.
  • You own your own business and want to learn more about your ownership share or the rights of surviving owners.
  • You need to make long-term care arrangements for a beneficiary, such as a disabled child or ill partner.
  • You are worried that someone will contest your will
  • You wish to disinherit your spouse or another party to some extent.
  • You have questions about your will and related matters.
  • You feel more comfortable having a lawyer review your will to protect your best interests, even in the absence of complicating factors.

What is a Trust?

A living trust is a legal document that allows you to transfer your property and other assets to individuals and other organizations you designate expressly in this trust.  A living trust also helps you to shelter your property and other assets from probate, taxes, and public scrutiny.

A living trust is effective only upon one’s death and can be revoked, modified, or cancelled at any time during your lifetime.  Upon death, the trust becomes irrevocable and unchangeable.  Moreover, the only property affected by the trust is that which has previously been transferred to the trust.

Three parties are named in a living trust:

  1. Grantor/Settlor: the person who creates the trust

  2. Trustee: the party that manages and distributes the assets of the trust

  3. Beneficiary: those parties that will receive the property under the trust.

A person is the grantor, trustee and beneficiary during their lifetimes. Transferring property into the trust during your lifetime does not mean that you relinquish or diminish your control over these assets.  If an individual creates the trust with his or her spouse, they can be considered co-trustees. Upon death, the designated trustee assumes management of the trust.  The management of the trust can often be conducted outside of probate.

Creating a living trust can have several advantages including protecting assets from probate and developing a plan for unforeseen situations such as incapacity or disability.

What is Probate?

Probate is the legal process through which an estate must pass to ensure that 1) the estate is divided as declared in a will or 2) the estate is handled according to state laws (in the absence of a will).  It takes approximately one year for the probate process to be completed.  In this time, the validity of the will must be established and heirs, creditors and other vested parties must be notified of the decedent’s death.  Furthermore, it is during this process that disputes over the will or trust must be handled in court.

Matters that go through probate are often subject to taxes.  For this reason, it is good to understand how to avoid probate and protect your assets from avoidable taxes.  Note that probate taxes are different from estate taxes.  To learn more about tax issues pertaining to your assets, it is a good idea to consult with a qualified attorney.

How to Avoid Probate?

As mentioned above, developing a living trust is a primary way to avoid probate.  Property contained in a living trust is not considered part of your estate for probate purposes.  (Though it is considered part of your estate for federal estate tax purposes).

Bank accounts and retirement accounts can be converted to payable-on-death (POD) accounts by filling out a form in which you list a beneficiary.  Converting these accounts protects such assets from probate and ensures that the money goes directly to the beneficiary.  Vehicle registrations and security registrations may also be converted in the same manner.

Joint ownership is another way to protect your property from probate.  If you take title with someone else, the surviving joint owner will possess the property.

Gifting property can also help to avoid probate.  If you gift designated property to another party as a gift, it cannot be counted towards probate.  Contacting a lawyer can help you to better understand this and other ways of avoiding probate.

Will, Trust and Estate Litigation

Despite our best planning, situations do arise where litigation is necessary to settle matters of property and other assets following an individual’s death.  In these cases, it is imperative for involved parties to seek the counsel of a competent trust and estate litigation attorney.  Please read on to learn more about situations where litigation may be necessary.

Breach of Fiduciary Duty

Individuals and other parties named as the executors of a decedent’s estate (also called trustees) have a fiduciary duty to act in the interests of the deceased party and named beneficiaries.  When this party fails to do so, they can be help in breach of their fiduciary duties in a court of law.

Contesting the Will or Trust

Other situations may arise in which a party contests some element of a will or trust. In some cases, a surviving child of a decedent may contest a will in the event that assets were unevenly distributed among all surviving children or other beneficiaries.

In these cases, the party may argue that a will or trust is invalid because 1) the will was made by the decedent under duress/ coercion or 2) the document was signed while their health or mental soundness was somehow compromised.

In the first case of duress or coersion, also called undue influence, litigation can be challenging since the evidence must be circumstantial.  Some of the circumstantial evidence that may be considered by a court includes:

  • The health of the decedent at the time the will was completed
  • Statements from the attorney who helped prepare the will
  • If the favored beneficiary contacted the attorney
  • If the decedent’s estate was suddenly changed
  • The presence of the favored beneficiary when the will was signed
  • If the favored beneficiary was the sole holder of the will
  • If the favored beneficiary withheld information from other beneficiaries

There are additional circumstances in which will or estate litigation may be necessary.  If you would like to learn more about wills, trusts, and estate planning, please contact our qualified attorneys who can help determine and protect your legal interests.

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