Probate & Trust Litigation

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Probate and Trust Disputes and Litigation

When someone passes away, his or her family members must figure out how to distribute belongings, pay creditors, and settle the estate. A well-thought-out estate plan makes this process much easier, or even avoidable. Unfortunately, many people fail to create a proper estate plan during their lifetime and that can cause fighting and problems for the family – either because there is no plan or the plan is deficient. Poorly drafted estate planning documents, such as wills, trusts, or powers of attorney can lead to questions and conflicts by well-meaning family members who struggle to interpret the meaning of provisions in the plan. Reasonable people can disagree about the meaning of a provision in a trust or will. Even worse, many of us have members of our family that can disagree about anything and everything – that makes probate or trust administration disputes fairly common.

Litigation is the process to sort out those disputes through the court system. Litigation is no small undertaking, and is subject to detailed court rules, statutes, case law, and short deadlines that can make or break your case. If you miss court deadlines, you may not be able to sue or get relieve, as such it is imperative that you consult a knowledgeable attorney immediately if you question what is happening in an estate, or if someone is questioning your actions.

The probate litigation attorneys at Woods Law Group help individuals, heirs, beneficiaries, personal representatives (often called executors), and trustees navigate the litigation process to ensure the best possible result.

Probate Litigation – when do I need to hire a probate litigation attorney?

Contesting a will – There can be many reasons to contest a will. If an heir, devisee, or other interested party and you are concerned about the actions or someone as they administer an estate, you may file a will contest in the Arizona Superior Court. Due to short deadlines, if you wish to contest a will or probate proceeding, or if you are the personal representative and are being challenged, you should seek legal guidance from a qualified attorney as soon as possible.

There are several common arguments when challenging a will or the probate administration:

Will doesn’t comply with Arizona law – The right to create a will to transfer ownership of property at death is created by state law – and a will is only valid if it complies with the requirements of state law. Pursuant to A.R.S. § 14-2501-2503, a will MUST meet all of the following criteria to be valid:
- Be created by a person who is age 18 or older;
- Be created by a person who is of sound mind (testamentary capacity). Testamentary capacity is a very complicated issue, but basically means the following:
  - the person understood the will disposed of their assets at death;
  - the person knew the general nature and character of their property; and
  - the person knew their family members and who would inherit;
- Be created by a person who has testamentary intent – the intent to give instructions for what happens to their property after death;
- Be in writing;
- Be signed by the testator (the creator of the will), or signed by someone else in the testator’s conscious presence and by the testator’s direction; and
- Be either signed by at least two witnesses, each of whom signed within a reasonable time after the testator signed the will or the testator acknowledged signing the will; or alternatively, the will can be a valid holographic will if it was signed by the testator (meaning it can’t be signed by someone else in the testator’s conscious presence and by the testator’s direction) and all material provisions must be in the testator’s handwriting.
- If the will is to be self-proven, the signatures of the testator and witnesses need to be notarized. Being self-proven is NOT required for validity, however, doing so does remove the requirement to have the testimony of the witnesses at the probate court hearings after death to prove the validity of the will.
Competing Wills – people often create more than will during their lifetime (mind or feelings changed, family or relationship changes, changes in assets, etc…) – that is normal and common. Usually, the new will will revoke the prior will under its terms, but what happens when it doesn’t? What happens if the wills conflict? What happens if the wills are not dated so no one knows which will is more recent? These situations create the need for the probate court to resolve the confusion.
Undue Influence – since the testator must have testamentary intent – the intent to give instructions for what happens to their property after death – the intent of the testator is often disputed after they pass away. If a person in a position of power (often a caregiver such as a family member, neighbor or friend) took advantage of the testator, or overcame the testator’s own desires for their own benefit (i.e. the will reflects what the caregiver wanted, not what the testator actually wanted), a court may invalidate or modify the will to reflect what the court believes to be the testator’s true wishes.
Doubts Over Mental Capacity – since the testator must be of sound mind in order for the will to be valid, the mental capacity of the testator is often disputed after they pass away.
Breach of Fiduciary Duties – the personal representative, (sometimes called the executor), owes fiduciary duties to the heirs, devisees, and creditors of a decedent’s estate. That means that they have a legal duty of fairness and impartiality to the beneficiaries and creditors. They are not allowed to use the estate assets for their own benefit, nor can the estate assets be mixed or comingled with their own. If the personal representative doesn’t act in accordance with the law, the court’s instructions (such as missing deadlines), or the will, then they can be removed from office and personally liable for their deficiencies.

Intestate litigation – Intestate means that someone died without creating a will. Intestate estates can still have disputes as to who is to inherit, what they inherit, and who is to be in appointed as personal representative. Likewise, creditors’ claims and debts can create confusion. There can be many reasons to contest what a loved one is doing or has done with an estate often a family member has died. These challenges are heard by the probate court.

Trust Litigation - when do I need to hire a trust litigation attorney?

As with probate litigation, there are often deadlines that must be complied with in order to contest a trust, dispute a trust, void a trust, or invalidate a trust agreement. If you are questioning the actions of the trustee, or if you are the trustee and someone is questioning or challenging your actions, we recommend that you seek legal guidance as soon as possible.

There can be many reasons to contest a trust:

Disputing the validity of a trust –
- Undue Influence – In order for a trust to be valid, the settlor (creator, also known as grantor, trustor, or trustmaker) must indicate an intention to create a trust pursuant to A.R.S. § 14-10402. If a person in a position of power (often a caregiver such as a family member, neighbor or friend) took advantage of the settlor, or overcame the settlor’s own desires for their own benefit (i.e. the trust reflects what the caregiver wanted, not what the settlor actually wanted), a court may invalidate or modify the trust to reflect what the court believes to be the settlor’s true wishes.
- Doubts Over Mental Capacity – the settlor of a trust must have sufficient mental capacity to create a valid trust pursuant to A.R.S. § 14-10402. As such, the mental capacity of the settlor is often disputed after they pass away.
- Fraud or forgery – on occasion, someone attempts to alter someone else’s trust, either by changing terms, removing or adding pages, creating an entire document, or falsifying signatures. Of course, this is not permitted under the law and can invalidate the document, or the fraudulent portions, if the fraud or forgery is proven. The fraudster can be civilly, or even criminally, liable.
Confusing or unclear trust terms – trusts are complicated legal documents and unclear or incomplete language routinely causes confusion, questions, and conflicts. This is never more try in DIY trusts or those prepared by non-attorneys. Indeed, it is common to discover terms that completely contradict each other in such trusts – one interpretation may result in beneficiary A inheriting, while another reasonable interpretation may result in B inheriting. Such conflicts are difficult to resolve without knowledgeable attorneys, and perhaps the court, assisting.
Breach of Fiduciary Duties – a trustee owes fiduciary duties to the beneficiaries and creditors of the trust. That means that they have a legal duty of fairness and impartiality to the beneficiaries and creditors. They are not allowed to use the trust assets for their own benefit, nor can the trust assets be mixed or comingled with their own. If the trustee doesn’t act in accordance with the law or the trust, then they can be removed from office and personally liable for their deficiencies.

If you or a loved one are involved in, or have questions about, a will or trust dispute, please call us immediately to discuss your options. Remember, there are often time deadlines that will affect your rights.

Probate Litigation Attorney & Lawyer in Mesa, AZ

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Our team will represent you as if you are our family. We earn our clients’ trust and respect by adhering to the core values we consider a commitment to our clients:

Probate & Trust Litigation

Probate & Trust Litigation

Schedule your FREE Consultation. Use the form below or call 480.360.1776 today.

Probate and Trust Disputes and Litigation

Probate Litigation – when do I need to hire a probate litigation attorney?

Doubts Over Mental Capacity – since the testator must be of sound mind in order for the will to be valid, the mental capacity of the testator is often disputed after they pass away.

Trust Litigation - when do I need to hire a trust litigation attorney?

Disputing the validity of a trust –

Probate Litigation Attorney & Lawyer in Mesa, AZ

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