When a loved one passes away, it is an emotionally taxing time for their family and friends. In some cases, there are already strained relationships between various loved ones or between the person who has died and their survivors. Due to the stress and anxiety of the situation, these grudges, resentments, and negative feelings may become even more intense, which often leads to poor decisions in the handling of the deceased individual’s estate.
Estate Litigation Can Ensure the Decedent’s Wishes Are Carried Out Appropriately
An estate litigation attorney is often necessary to help everyone involved resolve issues over money, possessions, property, and other assets in these situations. The problems that come up are typically tied more to emotions than to business relations. Because of this, an experienced estate litigation attorney should not only be able to handle the legalities of estate administration but also be sensitive to the family dynamics and the extreme emotions that may arise as the assets are divided.
What Role Does the Attorney Play?
Unfortunately, conflicts often surface when a person dies, which creates problems with the administration of the individual’s estate. A skilled estate litigation lawyer will start by explaining the law to the beneficiaries and helping them navigate the process of finding a resolution. They will also clearly explain to the parties involved that they don’t simply work for the estate but for each named beneficiaries and even third parties who may have an expressed interest in the estate.
The estate litigation attorney will work most closely with the individual named as the executor of the estate. Their focus is to ensure the deceased individual’s wishes are carried out, but they will also address any circumstances that may need attention, including the following.
- Handling any situations in which an individual or entity feels they have a claim to part of the estate
- Overseeing any family law issues connected to the estate
- Resolving disputes that involve shares of the estate by dependents or any other beneficiary
- Dealing with any issues concerning individuals who have taken assets that belong to the estate without permission.
- Overseeing the distribution of the estate’s assets
- Managing the assets of the estate
- Determining the validity of any will that may exist
- Interpreting the provisions of the will
If a beneficiary hires an estate litigation attorney to represent them, as opposed to the executor or the estate, that attorney’s role includes the following duties.
- Serving as arbitrator in the management of the estate’s funds
- Considering any exceptional circumstances that surround claims to the estate related to dependency
- Assessing how assets and properties are divided if this is questioned
- Helping a particular beneficiary to secure specific assets if they feel they have a valid claim
- Providing any necessary input regarding the validity of a will, if one exists
If any third parties express interest in the estate, the litigation attorney must follow the law to determine whether there is any validity to their claim and then handle the claim appropriately.
What If a Person Passes Away Without a Will?
Although most reasonable adults understand the importance of having a will, many do not prepare one before they die. For some, it may be that they don’t have the money, others choose to not think about their own mortality, and then some pass away unexpectedly long before they would have ever expected to need a will. If a person dies without a will, it is referred to as “intestate,” and the state steps in to distribute their assets according to intestate success laws.
When a person dies without preparing a will or assigning an executor to their estate, the state appoints a person to act as administrator of the estate as it goes through the probate process. An estate litigation attorney can help this individual submit a death certificate for verification by the government, stating that the deceased individual has passed. Once this step is complete, the lawyer will determine whether the administrator meets the qualifications to represent the estate and confirm that by sending the necessary documentation.
What if There Are Disputes That Cannot Be Resolved?
Probate litigators are most active in settling an estate when this situation arises. If the deceased person’s loved ones feel that something was done incorrectly in the administration of the estate, the estate litigation attorney can intercede. Their job is to guide the beneficiaries through the court system to resolve problems such as:
- Removal of trustees in certain cases involving a will that forms a trust
- Formal accounting of expenses and assets
- Guardianship issues
- Surviving spousal claims
- Executor fee disputes
- Contested wills
- Administrator appointments
The steps an estate litigation lawyer will take to reach a decision in difficult cases include:
- Researching and investigating legal details and claims according to the will or estate law
- Filing the appropriate court petition, stating the relevant laws and facts
- Discovering and examining any necessary evidence, such as sworn depositions, bank statements, subpoenas, and other documents
A judge will typically order the parties involved to enter into mediation before a case is brought to trial. This is a non-adversarial and non-binding process meant to resolve any issues. The individuals involved will meet with a mediator in an attempt to settle disagreements without resorting to a full and costly trial.
If the parties involved cannot reach a resolution through mediation, the estate litigation lawyer must prepare for a trial. This includes taking steps such as:
- Preparing for cross-examination of witnesses
- Making opening and closing statements
- Subpoenaing witnesses and obtaining their statements
- Re-examining evidence
The trial in these cases is usually not a jury trial but a “bench trial,” presided over by a judge. The trial may take several days, but they may not be consecutive due to the court schedule. However, if the ruling is not satisfactory to the parties involved, they may file an appeal.
Let Huber Fox Handle Your Estate Litigation Needs
At Huber Fox, we understand the difficulties involved with settling an estate when there are disagreements between beneficiaries. We handle every case with compassion, integrity, and a high level of skill that we’ve gained through years of experience. Contact us today to find out more.
The post What Does an Estate Litigation Attorney Do? appeared first on Huber Fox, P.C..