by Anonymouse

Created on: December 01, 2008   Last Updated: December 12, 2008

During probate litigation, beneficiaries can become pitted against each other in legal battles, which can last up to an entire year! Everyone involved should know the fiduciary duties of the attorney, the executor, and the beneficiaries. It's also important for each to recognize when a breach of fiduciary duty is being committed.

Duties of the Attorney

The fiduciary obligations of the attorney include: paying lenders; liquidating property (including real estate); obtaining proceeds from life insurance; distributing property to heirs; filing tax returns; final accounting; and trust administration. Attorneys must uphold the legal interests of their clients above all else. Malpractice charges against attorneys can result from various actions. One is favoring certain clients while representing a whole family - done for higher monetary gain. Document forgery is another serious issue. No matter how trustworthy an attorney seems, clients should always keep an eye out for these kinds of ethical violations.

Duties of the Executor

The executor (or trustee) is the person entrusted to carry out requirements of the will (or living trust). That person should be named in the paperwork, otherwise a representative will be chosen by the probate court. All executors should beware that charges of misconduct can lead them straight into legal battles. Such was the case with North Carolina's Ben Cline. He was the helpful neighbor to whom elderly Mary Mills entrusted her finances. Mills gave him power of attorney to spend money of her behalf. Cline then proceeded to sell her house for $150,000 and allegedly embezzled $56,000 of the profits. Executors have responsibilities that must be taken seriously, at the risk of being charged with a breach of fiduciary duty and sentenced accordingly.

Contesting of the Will

Probate litigation most frequently involves contesting the validity of wills. Sometimes the roles of executor and beneficiary include this challenge. To begin, a Last Will and Testament must be written and signed by the testator and two witnesses. At the time of signing, the testator must have certain mental capacities, which is sometimes possible despite mental illness. Legitimate wills cannot have been revoked, forged, or include requests that contradict the testator's original intent. The most common charge is undue influence: "mental, moral or physical persuasion preventing the testator from following the dictates of his own mind and accepting instead the domination and influence of another". Testators can be bullied into changing their wills!

Reasons for Estate Planning

Without private estate planning, the government will get involved. The government estate plan is called "intestate probate". Under it, court must approve simple procedures, like paying the decedent's bills. Family business becomes public knowledge. To make matters worse, while private estate planning can greatly reduce death taxes, the government plan does the opposite. Intestate probate is more complex, frustrating, and sometimes unfair than private estate planning. Wills and living trusts are both better options for families; letting the government have so much control over their assets can make probate litigation even more expensive and traumatizing.

Bibliography:

-Connecticut Estate Planning Law Center, LLC; ctwillsandtrusts.com/what-is-probate.php; December 1st, 2008

-Law Office of D.D.V.; dvanarelli.com/will-contests-probate-litigation-elde r-abuse-actions.html; December 1st, 2008

-Texas Probate Litigation; txprobatelitigation.com/fiduciary_duty/; December 1st, 2008

-Spinella Owings & Shaia p.c., Attorneys at Law; spinella.com; December 1st, 2008

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