Understanding Estate Litigation

Litigation is the process by which parties seek the intervention of a court or other authority to resolve a disagreement they cannot decide on their own.

While the phrase might refer to alternative conflict resolution processes like mediation or arbitration, estate disputes almost usually end up in court.

Whether you are a beneficiary, personal representative, or another interested party, an estate litigation attorney can help you understand your choices and resolve your issue.

Common disagreements that result in estate litigation:

  • Disputes over the legitimacy of the will or trust.
  • Claims that the personal representative or trustee violated their fiduciary duty
  • Disputes over creditors’ claims against the estate.
  • Claims of fraud or undue influence
  • Guardianship concerns.

As previously stated, estate litigation happens when disagreements develop, and the parties cannot settle them. They may be unable to resolve them for various reasons, including personal issues, which are prevalent in estate disputes.

The estate documentation may be vague or inconsistent. An heir could have been suddenly disinherited or mistreated.

Whatever the cause, litigation may be the best way to resolve the conflict. An estate litigation attorney will help you analyze your case and explain the possibilities.

What happens if you can’t resolve a dispute?

If your issue involves a will, you must go through the probate process. The process consists of filing the will and then administering it under the supervision of the probate court.

Because you are already in court, you do not need to file a separate lawsuit, even if the matter might be handled separately. This helps to simplify the lawsuit procedure.

When a trust is involved, the procedure becomes more challenging. Trusts are administered independently of the probate process and without the oversight of a court.

As a result, if you want to attack a specific component of the trust or how it is run, you must launch a separate action.

Is there litigation if there is no will or trust?

If the decedent died without a will or trust, you must still go through probate. The first stage will be to designate a personal representative, which can lead to conflict.

Once the personal representative is selected, intestate succession statutes will disperse the estate’s assets.

As a result, disagreements over who obtains estate assets are highly unusual; nonetheless, litigation might still emerge over many other components of the procedure, such as the following:

  • Whether the personal representative is appropriately carrying out their obligations.
  • If there is proper notification to all heirs and creditors.
  • Identification and valuation of estate assets.
  • The handling of creditor claims

As a result, if there is any dispute, it will most likely occur during the probate process.

Is settlement an option when you opt for litigation?

Yes, you can settle your case. The chance of settlement, however, will be determined by a range of variables. For example, the personal representative or trustee may be unable to approve a settlement if it violates the conditions of the will or trust.

The reality is that resolution in an estate lawsuit might be more complex than in other disputes due to the number of parties involved and the limits of estate planning instruments.

This is one of the reasons you should consult with an estate litigation attorney early in the process; they will help you determine whether settlement is a viable option or if litigation is the only way to resolve the disagreement.

How to navigate estate litigation

Defend the will

You should defend the will if you believe it is just and legal. Estate litigation can take several months or longer. Therefore, it is best to hire an experienced lawyer as early in the process as feasible. The Wills, Estates, and Succession Act (WESA) establishes the requirements for a valid will, which include:

To form a will, you must be at least 19 years old, mentally competent in writing it, and sign it with two or more witnesses.

These requirements should be addressed first when determining the validity of a will, as it may be declared void owing to other conditions.

If a will does not follow the statutory formalities or was prepared while the will-maker was incapacitated or under undue influence, it may damage your entitlements.

Know the wishes of your loved one.

Engage in end-of-life conversations with your loved ones throughout their lives. Accidents and abrupt diseases can occur at any time.

Know where your loved one’s will, trust, and other estate documents are stored. Ensure that he or she engages an expert estate lawyer to write the estate plan and that the plan is updated correctly after significant events, such as a spouse’s death, the sale of a business, or the birth of a child.

Understand the timeframes

There are several time constraints for filing estate-related court actions. Depending on your claim, it could be as little as 180 days after probate is granted.

If you are concerned that a will is invalid or that you have been disinherited, you should contact a lawyer straight away, as courts seldom, if ever, allow for actions filed outside of the appropriate time frame.

If you wait too long, you risk losing your entitlement.

Don’t sign as a witness.

If you or your spouse are being gifted something in a will, you should not sign as a witness. The best approach is for the will-maker to have independent witnesses present to corroborate their signature. If you witness a will in which you also inherit, your gift may be void.

If you need assistance in preparing your estate plan or have questions regarding challenging or defending the validity of a will, contact a reputable wills and trust attorney Upper Marlboro and have them help you.

As a rule of thumb, ensure that the professional you hire is experienced and knows what they are doing. You don’t want someone who causes more chaos than is already there.

Tricks to Fast Track Probate Proceedings

Probate proceedings for some estates might last several months or even years. Unfortunately, you don’t want this, do you?

You want the inheritance to be passed on to the beneficiaries as soon as possible. If you are a beneficiary, you do not want to be stuck in a scenario where you cannot get the assets. While this process is often slow, there are several things you can do to speed it up.

These things include:

Work with an experienced wills and probate attorney

Hiring a qualified probate lawyer can be the difference between a simple and swift probate process and one fraught with frustration and delays.

Work with an attorney who will speed up the process and help you obtain probate within a few weeks. An experienced attorney will direct you in the right direction, and help you make the right decisions.

Many people make the mistake of wanting to save money by doing everything by themselves. This is wrong.

The right thing to do is to work with an experienced professional who will point you in the right direction and help you save time and headaches.

Find out the debtors and creditors as soon as possible

If you are the executor of an estate, one of your responsibilities is to swiftly identify the deceased’s creditors and debts. The most obvious bills and expenses that you, as the Executor, must pay before distributing the legacy to the recipients are IRAs and credit card companies.

Once you acquire probate, you should pay them as soon as possible.

Take charge

If you are the executor or administrator of the estate, only you should interact with your probate counsel. Do not let family members or beneficiaries dictate to the probate lawyer what to do.

Remember that probate lawyers can only accept directions from the executor or administrator. If other family members insist on having a say, your probate lawyer has the right to discharge himself, especially if there are contradicting instructions and competing demands.

If you are not in command and allow everyone else to have their opinion, there will undoubtedly be a delay that you are trying to avoid.

File estate tax as early as possible

If the Internal Revenue Service Form 706 must be completed, the IRS will normally take at least six months to complete their evaluation, which does not include any time required to fix errors on the form.

You can close probate sooner if the personal representative gathers the information needed to complete Form 706 early in the probate procedure. The personal representative must verify that Form 706 is accurately completed and sent to the IRS.

Even if an estate is not obliged to submit the Form, it may need to file a state estate tax or inheritance tax return.

To avoid delays, you should file as soon as possible. If you are confused about how to go about it, get the input of your attorney or any other professional.

Pay attention to the unusual assets.

Certain types of difficult-to-value property may cause probate to be delayed. These assets may include:

  • Collectables
  • Complicated property or business rights.
  • Patents and other intellectual property
  • Extremely illiquid property

In such a scenario, you need to keep your attorney close to you to ensure that these assets do not prolong the probate process. The attorney will analyze the assets and determine how they will be dispersed or disposed of.

Separate the estate money.

As the Executor or Administrator, you must separate the estate funds from your funds. The right way to do it is to open a separate bank account and avoid combining estate and personal funds.

Remember that the beneficiaries are entitled to a thorough record of the executor’s activities. Having a separate estate account and accounting for estate funds will help the probate process move more quickly.

This is because you won’t need to explain many things. The beneficiaries will also have a better understanding of what is going on, and as a result, they won’t need to raise many issues.

Prepare your schedule of assets.

The Schedule of Assets is one of the most important documents you must fill in the Family Justice Court before the grant of probate or letter of administration is issued.

To save time, determine the deceased’s assets and assign a value to them. As part of the administration process, you should file the Schedule of Assets with the probate court.

If you are the estate’s executor or administrator, your probate lawyer will need a list of assets and a valuation of personal effects, real estate, or other assets.

You should provide your probate lawyer with copies of bank statements, title deeds, and insurance policies.

By doing this, you will fasten the process and have an easy time going through the process.

Get a court permission if necessary.

If probate beneficiaries do not get along or speak to one other, work with your probate attorney Largo and seek court authorization to proceed with the probate process.

By presenting files to the court as soon as possible and attending court as necessary, you increase the chances of completing the process on schedule.

The last thing you want is to bring together the beneficiaries so that they can agree on the contentious issues. When you do this, there is a chance that the process will take too long, and the beneficiaries might even disagree, dragging the process for years.

Parting shot

These are some tricks you can use to speed up the probate process. As mentioned, always work with an experienced attorney who knows what they are doing.

You should also research and find the necessary documents so that you can obtain them as soon as possible. It will even be better if you can get them before you start the process.

In some cases, you will find the beneficiaries don’t agree on some contentious issues. To speed up the process,don’t try to make them agree or make peace. Instead, get a court order to proceed with the probate process.

Tips to Protecting Your Kids and Ensuring They Get Your Property When You Are Gone

As much as you love your kids and would love them to have a great life even in your absence, this is not always the case. This is because the assets end up in the hands of creditors and other people resulting in your children ending up poor.

Thankfully, there are several things you can do to ensure that your kids are safe. Some of the things you can do include:

Don’t leave assets directly to the kids.

Instead of having the assets in your kids’ name, you should have them under an asset protection trust (APT).

A trust deed, which describes the Trust’s terms and conditions, establishes the Trust. It appoints a trustee to manage the trust assets, which can be a family member, a trusted friend, or a professional fiduciary.

The trust deed lays forth how the assets will be managed and dispersed. The Trust may specify that the assets be used for the children’s education, healthcare, upkeep, or any other specific needs until they reach a certain age or milestone, such as turning 18 or finishing their education.

One of the primary advantages of an asset protection trust is that it protects assets from possible creditors. When assets are placed in a trust, they are no longer regarded as the parents’ or children’s assets and are protected from creditors seeking to collect on obligations.

Before settling on a trust, consult an experienced trust and estate planning attorney. They will assist you in navigating the legal requirements, selecting the proper trust structure, and ensuring compliance with applicable laws and regulations.

For the best outcome, clearly define your goals for developing the Trust. Determine the assets you want to safeguard, the level of control you want to maintain, and the Trust’s intended beneficiaries.

You also should choose a reliable Trustee: Choose a trustee who is trustworthy, knowledgeable, and understands fiduciary obligations. The trustee must act in the beneficiaries best interests and follow the trust deed’s directions.

Make use of a revocable living trust (RLT)

An RLT is a legal document that specifies how your assets will be managed after your death.

Property, bank accounts, investments, and other goods are some items you can include in the Trust.

These trusts are made while you are still alive, and you can revoke them at any point as the trust maker.

There are various advantages for children if an RLT is implemented. They are as follows:

  • Able to avoid probate, which can be a lengthy and time-consuming process.
  • It will be less expensive than probate, allowing your beneficiary to inherit more.
  • Provide additional privacy because RLT details are normally restricted from being entered into public records.

Properly fund the revocable living trust to reap the most benefits. This entails transferring ownership of assets into the Trust’s name, such as real estate, bank accounts, investments, and other valuable property.

If you are doing this for the first time, consult with your attorney to ensure all necessary processes are followed to transfer assets properly.

Always remember that the Trust isn’t a set-and-forget thing—you need to review it regularly to verify it is up to date and in accordance with your wishes.

For example, birth, deaths, marriages, and divorces may need the Trust’s provisions to be modified. Consult with your attorney regularly to make any required changes.

Hold your property in a Limited Liability Company (LLC)

One of the most significant advantages of creating an LLC is the restricted liability protection it gives. Putting your property in an LLC creates a barrier between your and LLC’s assets. In the event of a property-related lawsuit or liability claim, your assets are usually protected from being taken to satisfy the LLC’s debts or legal responsibilities.

Begin by forming a separate LLC for each property you want to protect. Consult with an attorney to ensure that the LLC is legally created and complies with the legal laws and rules of the state where the property is located.

This usually entails submitting the required formation documents, paying fees, and creating an operating agreement.

Obtaining suitable insurance coverage for your LLC’s property is always wise. Consult an insurance professional to examine the risks associated with your property and ensure you have appropriate coverage for potential liabilities, property damage, and other situations.

Don’t let your family go through probate.

Protecting your family from the probate process is putting in place strategies to ensure that your assets flow smoothly and quickly following your death to your loved ones.

Besides having Trust, there are plenty of other ways you can go about it.

One of the ways is having Transfer-On-Death (TOD) and Pay-On-Death (POD) Designations. Certain assets, such as bank or brokerage accounts, may be designated as POD or TOD in some states. These designations allow you to name beneficiaries who will get your assets outside probate upon death.

You also should maintain an up-to-date Will. While a will usually necessitates probate, having an up-to-date and detailed will is still essential. It lets you indicate your desires for asset distribution and choose guardians for small children. A well-drafted will can aid in the probate procedure and provide clarity for your family.

You also should consult an estate planning lawyer Bowie who can assist you in creating a thorough estate plan suited to your needs.

They will walk you through the process, explain the rules in your jurisdiction, and ensure your estate plan includes measures to avoid probate and safeguard your family’s interests.

There you have it.

As you have seen, there are plenty of ways to protect your kids and ensure they always get the property you have always worked hard for and want to give them.

Remember that as a parent, you should never risk dying, being incapacitated, or being sued if you don’t have a plan for your children.

You should never leave your child dealing with more than just the trauma of your death and, at the same time, trying to navigate clearing financial assets and commitments without the necessary documentation or understanding.

Always have a plan in place.