Estate litigation commonly involves disputes between family members or family acquaintances contesting the contents or legitimacy of a will. The involvement of family members has the potential to create a passionate and fiercely contested legal contest. We understands the emotional stakes involved in estate litigation and our clients’ need for both a successful outcome and closure. Further complicating Estate law are the numerous laws and cases which define the rights and obligations of parties in estate disputes. Estate litigation may also concern dependent support claims or disputes over probate fees that have the effect of diminishing the value of an estate. Facing these many challenges successfully requires trusted legal representation with a proven track record of getting results.
Estate litigation practice includes will defenses; will challenges; beneficiary disputes; interpretation of will disputes; interpretation of trusts; holograph will claims; dependent support claims; passing of account disputes; unjust enrichment claims; and guardianship applications, among others.
If you have been excluded from a Will or if you are a disappointed beneficiary – either a spouse or a child – then you have a legal right to contest a Will. Unfair treatment in a Will is extremely upsetting and occurs more frequently than you may realize.
Valid reasons why you have not inherited what you believe is fair might include: family estrangement; undue influences on your parent; sibling benefit inequality; stepfamily issues; parental incapacity; inheritance disputes stemming from a parent’s divorce or re-marriage; elder abuse; or trustee mishandling of an estate, and more. If you feel wronged, it is in your best interests to consult a lawyer with considerable litigation and dispute resolution experience.
Why you need an Estate Litigation or Estate Planning lawyer?
To protect your interests: there are limitations periods on the amount of time you have to bring your claim. A lawyer can help you meet these deadlines to protect your claim.
To provide guidance: a lawyer can review your situation objectively to determine whether or not you have a valid claim. It will save you the time, expense, and energy of applying to the court without success.
To alleviate stress: the passing of a loved one is emotionally exhausting. It can be difficult to assess your claim and take steps to apply to the Court while grieving. A lawyer can do this work for you so that you can focus on yourself and your family during this difficult time.
To ensure proper execution: there are a number of technical requirements to execute a valid Will. It is best to ensure these are met by consulting with a lawyer while you are alive, instead of allowing the Court to determine the validity after you are deceased.
To minimize taxes owed: certain transactions will trigger taxes in estate planning such as property transfers. An estate planning lawyer can help you organize your assets so that the maximum amount of money will be available for your beneficiaries.
To protect your assets: the best time to hire a lawyer is before there is any possible litigation. Hiring an estate planning lawyer can ensure that your assets and Executor are not subject to future litigation.
To advise on jurisdictional issues: the several different courts in Utah. If you own assets in multiple jurisdictions, it is important to consult with an estate planning lawyer as these may need to be placed in a second Will, or be disposed of otherwise to avoid tax implications.
when you’re considering an estates claim
Check your timing: Are you within the time limit of 180 days after Grant of Probate? Section 61 of Wills, Estate and Succession Act prohibits any applications to vary a will 180 days after the Will has gone through probate. If the time limit expires, you will be unable to bring your claim. Other challenges to wills may have a longer limitation period, but it is important to commence your claim promptly to protect your rights.
Contact one of our lawyers: Schedule your free consultation at Ascent Law so we can discuss your point of view and assess whether or not you have a valid claim. Call us at 801-676-5506 or Toll Free at 1-800-564-2707. We’ll review your case and inform you of the best way to proceed.
Gather all your evidence: Be prepared to bring all the evidence you’ve collected to your free consultation so we can help prepare your claim. Types of evidence would include: a copy of the Will (if there is one) and information relating to the deceased, other beneficiaries and assets of the Estate.
Common Estate Litigation Terms You Should Know
Executor: the person appointed to carry out the wishes in a Will.
Trustee: the person responsible for managing property held in trust.
Estate: all the money and property owned by an individual at the time of their death.
Testator: the person who makes the Will (formal term for will-maker).
Beneficiary: a person who benefits from the Will.
Intestate: when someone dies without a Will.
Probate: the process by which the court confirms the Will to be valid and appoints the Executor(s).
Grant of Probate: the legal document authorizing an executor(s) to manage the deceased’s estate in accordance with the provisions of their will.
Challenges to the Will
Challenge the Will based on capacity: if it can be shown that the will-maker lacked testamentary capacity, the Will may be found to be invalid. For example, if the will-maker has been declared as unable to manage their affairs by their doctor due to mental incapacity. Testamentary capacity can be challenged on three grounds:
At the time of executing the Will, the will-maker did not understand that they were making a will;
The will-maker did not understand that he or she was intending to dispose of property effective on his or her death; or
At the time of signing the Will, the will-maker suffered from mental disorder.
This illustrates why it is important to organize your estate before you fall ill: you do not want to reach a point in sickness or mental decline where you are unable to explain your wishes to a lawyer. A mental status examination may be required to determine capacity.
Challenge the Will based on undue influence: if someone coerced the will-maker into making the Will in a way that favors them or their wishes, the Will may be found to be invalid. For example, a child convinces their parent to change their Will on their death bed to provide them with a higher percentage of the assets.
Challenge the Will based on unfair distribution of assets: the Wills, Estates and Succession Act confers a moral obligation on individuals to provide for their spouse and children. A child who receives nothing in their parent’s Will may apply to the court to have the assets redistributed so that they are provided for. To vary a Will, you must be an
Eligible applicant under the Wills, Estates and Succession Act. This includes the surviving spouse, of the same or opposite sex; the common-law spouse (in a marriage-like relationship for at least two years prior to the death, including same-sex); or the child of the will-maker, including adopted children but not step-children.
Challenge the Will based on improper execution: there are a number of technical requirements that must be met to make a Will valid. If one of these conditions is not met, the Will may be challenged on this ground. For example, claims can be brought if the Will is not signed or witnessed. Conversely, the Court may choose to uphold the Will, despite the deficiencies, if it determines that it accurately reflects the wishes of the will-maker.
Challenge the Will based on a constructive trust: if you have provided unpaid work for the will-maker and were promised compensation, you may have a claim for the assets in the will, even if you have not been specifically provided for. This is called a constructive trust or unjust enrichment.
Real Estate Law Disputes
If sought early on, a real estate attorney may be able to help you settle your dispute in a cost-effective manner. While real estate agents can help you buy or sell a piece of property, they cannot protect you from litigation. Following are some real estate litigation disputes which everyone should keep in mind.
Purchase and sale contracts
One of the most common reasons for litigation to occur is when there is a dispute over a purchase or sale contract. Attorneys handle Utah real estate litigation matters that stem from disputes over contracts with the utmost aggression and skill.
Breach of fiduciary duty
When a real estate developer or financial advisor fails to protect your best interests, you may have the right to take legal action against him or her.
A quiet title action is a lawsuit that establishes ownership of a property. We are prepared to enter litigation to assist you in resolving issues related to an easement, a boundary, a lien on the property or any other defect in the title.
Landlord and tenant litigation
Experienced lawyers handle all types of landlord and tenant disputes, including those arising from payment of rent or failure to maintain premises.
Real Estate Litigation Issues
Real estate litigation issues can encompass a wide range of legal topics and conflicts. This is because real estate transactions are complex interactions that involve many different laws, legal rights, and policies. Real estate litigation intends to resolve these legal disputes using the court procedures and mechanisms. A typical real estate lawsuit will end with a damages award being issued from one party to another.
When it comes to real estate litigation, one of the main subjects of contention is the real estate contract. This is the contract that governs the various terms and conditions related to the sale of the property and the transfer of title. This should be clearly written in order to avoid disputes over legal issues.
Common Real Estate Litigation Issues
Besides contract disputes some common real estate litigation issues may include:
• Mortgage disputes and defaults
• Foreclosure issues
• Implied warranties (such as whether the house is livable or not)
• Disputes over penalty clauses in the contract
By far one of the more litigated issues is that of foreclosure. In many cases, it can be contestable whether or not a house should be up for foreclosure. Thus, it may become necessary to file a lawsuit to determine whether foreclosure should be prevented, or whether it should be allowed to proceed.
On the other hand, filing a frivolous lawsuit in order to delay foreclosure is never a good idea. This is generally against the law and may lead to legal penalties such as a contempt order, or even criminal penalties. A frivolous issue is one that is not likely to succeed in court, or one that lacks sufficient evidence to be taken seriously in court.
Real estate litigation issues need to have serious merit in order to be filed in court. This means that there should be a good chance that the plaintiff will actually succeed on their claim if they file the lawsuit. Filing a frivolous lawsuit can cost the court as well as both parties precious time and resources.
Do I Need a Lawyer for Assistance with a Real Estate Litigation Issue?
Real estate claims can sometimes involve very complex legal issues. Real estate litigation issues are best handled by an experienced and qualified real estate lawyer. You may need to hire an attorney in your area if you need help filing a claim, or if you need assistance during the actual litigation process.
As trust and estate litigation, including will challenges, guardianship/conservatorship proceedings, and other contested probate actions continue to increase in the years to come, claims of undue influence will undoubtedly serve as a centerpiece of those cases. And while more states adopt and grapple with the complexities of the Uniform Trust Code (and other emerging laws enacted for elder protection), we can expect those courts’ discussions of this topic will evolve accordingly. For the benefit of their clients’ families (and perhaps their own), lawyers of all types would do well to stay abreast of these developments.
Estate Litigation Attorney Free Consultation
When you need legal help with an estate litigation, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506