There are two tickets to “probate” — when the decedent left a will or there was no estate plan at all. Only a properly funded living trust avoids probate.

Before the assets of an estate that are subject to probate can be distributed, the will must be admitted to probate. If there is no estate plan at all, someone must open an administrative probate and the court will appoint an administrator of the estate (just like the will appointed an executor of the estate).

Some of the disadvantages to probate include no privacy — it’s a public record, it can take a long time (at least 9 months) before assets are distributed, and it’s expensive.

In addition to handling the typical “probating” of a will, I handle other matters as well:

Trust Disputes

Trust disputes or trust contests can be initiated in a variety of ways. An “interested person” (e.g. heir, beneficiary, child, spouse, creditor) may bring an action to determine the validity of the trust, to interpret a trust provision, to set aside conveyances to trusts, to impose constructive trusts on express trust assets, to include or exclude beneficiaries, and to remove trustees. Many of the same claims asserted in will contests can be made in trust contests, particularly lack of capacity, undue influence, and etc. Trusts that were improperly created, executed, or funded may also be set-aside.

Trustee Problems

One of the fastest growing areas in probate litigation involves renegade trustees who ignore their duties. Trustees have a fiduciary relationship with the trust beneficiaries. As such, they owe the beneficiaries a number of duties.

If a trustee commits, or threatens to commit, a breach of trust, a beneficiary may commence a proceeding to (1) enjoin the trustee from breaching the trust, (2) compel the trustee to compensate for breaching of the trust, (3) appoint a temporary trustee, (4) remove the trustee, (5) reduce or deny compensation of the trustee, or (6) trace and recover wrongfully disposed of trust property.

To discuss probate or trust disputes with us, please schedule a complimentary intial consultation with Estate Planning Attorney, Richard M. Seff. We are receptive to weeknight or weekend appointments.

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