Unexpected disinheritance. Lost or incomplete will. Stopped payments.

If you believe that you have been cheated out of what you were entitled to from an estate or trust, or if you have been accused of malfeasance, you should immediately seek the advice of your own independent counsel.  While the estate or trust likely has legal representation, that attorney often acts in service to the fiduciary of the estate or trust, and may not necessarily serve you or your interests.  An attorney that you retain will work with you to protect your best interests and pursue action most likely to achieve your desired results.

Gaeta Friedman offers a free initial consultation and will give you the time that you require to explain the matter to the best of your knowledge and understanding.  At the conclusion of that consultation, you will have a clear understanding of the likely trajectory of your matter and the approximate costs involved.

Not necessarily. Sometimes, a challenge to a will or allegations lodged against a fiduciary of a trust or estate can be resolved without a long and drawn-out lawsuit, once the parties are properly advised of the costs and benefits of such action. Gaeta Friedman always puts the interests of our clients – and their pocketbooks – first.

Nevertheless, litigation may be the only option if there is, or appears to be:

• An invalid will because of improper execution, undue influence exercised upon the deceased during his or her life, or questions about the deceased’s mental capacity at the time the will was executed.
• Executor misconduct including failing to pay the estate’s debts or distribute assets according to the will or applicable law.
• Fraud, including claims against the estate arising out of attempts to obfuscate or otherwise usurp assets from the rightful beneficiaries.
• Breach of fiduciary duty when the executor is not managing the estate’s or trust’s property diligently or is otherwise acting against the beneficiaries’ best interests.
• Disagreements over distributions, typically when the will is ambiguous and/or if you believe that you can produce evidence that the will has been revoked or superseded (by a codicil) either in whole or in part

Trusts are treated differently than wills and many function smoothly without recourse to legal action.  However, many of the same issues that cause estates to be subject to additional legal proceedings also apply to trusts.

• Undue influence upon the deceased when the will or trust was being established.
• Improper action on the part of the fiduciary, which can take many forms:
  • Breach of the duty of care (with respect to the fiduciary’s management of the assets).
  • Breach of the duty of loyalty (with respect to the fiduciary capturing for themselves an economic opportunity that should have been provided to the beneficiary)
  • Misappropriation of funds.
  • Mismanagement of assets.
  • Improper distribution of assets or withholding of distributions.
  • Self-dealing by commingling trust assets or taking other actions that favor the trustee at the expense of the trust’s beneficiaries.
  • Conflicts of interest, both financial and personal.
  • Retaliation by the fiduciary against the interests of the beneficiary by abruptly terminating trust distributions.
• Fraud by individuals attempting to conceal assets or making illegitimate claims upon the trust.
• Disputes over the trustee’s fee where the fees charged are excessive.

When a potential dispute regarding an estate or trust arises, there are at least three things that you should do before committing to legal action.  You should be:

• Informed. Consult with an attorney of your own choosing so that you can make informed decisions regarding whether and when to initiate legal action.
• Knowledgeable. Before your consultation, procure as much information as you can regarding the situation.  This will enable you and your attorney to better understand and assess all of the legal issues pertaining to your matter.
• Prepared.  In most meritorious estate and trust disputes attorney’s fees and costs will be paid in whole or in part by the estate or trust itself – but only at the conclusion of the litigation.  You must be prepared to financially sustain your case in the meantime.

• Waiting too long. There is usually only a short window of time for you to best position your case following the death of a loved one.  This is especially true if the situation involves theft of funds, undue influence, and/or lack of capacity.  You should consult with an attorney the moment that you suspect any malfeasance that could adversely affect your inheritance, your settled rights to payments, and/or your beneficial interest in an estate or trust.
• Lacking commitment. Litigation can be protracted; however, the end result can be well worth the price of admission. If someone committed malfeasance and they are liable to you, an estate, or a trust for damages, they will do everything to delay their day of reckoning. The wheels of justice do not always turn swiftly.  Sustaining litigation to its ultimate (hopefully just) result requires a certain amount of mental and emotional forbearance, as well as financial resources.
• Believing that things will resolve on their own.  A malefactor who exercised extreme efforts to deprive you of your inheritance or property is not going to simply “make things right.”  It is not helpful to look at such situations with rose-colored glasses.  If you want a successful outcome, you must understand that you may have to fight for that that to which you are legally entitled.

Under certain circumstances, fighting for your legal rights may involve suing the executor or trustee even after the estate or trust has been closed.  Courts commonly recognize two situations in particular as grounds for retrospective suits:

• Lack of due process. Due process – the notice and an opportunity to be heard – is one of the most fundamental rights of our legal system.  If you were not provided with notice of probate or notice that the fiduciary of an estate or trust was attempting to take legal action, you may have legal recourse against them, even if the matter was already adjudicated by the court.
• Discovery of new evidence or lack of disclosure. If new evidence comes to light or if full disclosure was not made to you, you may have a right to re-open the estate.

However, it is your responsibility to protect your own rights throughout the process of settling an estate or trust.  If you sign certain estate documents – such as a refunding bond and release, a receipt and release, or a general release – you are essentially waiving your rights to sue.  It is good practice to consult an attorney when you are asked to sign such documents, particularly if you have any legal question or concern regarding actions or motives of the fiduciary during the management of the estate or trust.