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A Sketch of Probate LitigationLitigation in the Probate Court can arise in a number of situations and contexts. This is just a sketch of a few such situations. Guardianships and Conservatorships. If a family member has lost the ability to make decisions for themselves, a guardianship or conservatorship may be in order. Contests arise in these situations should the allegedly incapacitated individual contest the appointment of a guardian or conservator or dispute who should act as their fiduciary. Contests can also arise if it is alleged that a fiduciary has mishandled the affairs of a legally determined incapacitated individual. Probate Estates. Contests over probate estates can arise where a will or other testamentary document is called in to question by a family member or other interested person, the appointment of personal representative, misappropriation of assets or other breaches of fiduciary duty by an appointed personal representative just to name a few of the types of situations that can arise in a probate estate that results in litigation. Trust Litigation. Trusts are generally administered without the assistance or interference of the courts. In fact, that is the preferred manner in which trusts are administered. However, trust disputes do occur in terms of capacity of the settlor of the trust, removal of trustees, misappropriation of assets, modifying the terms of the trust, or terminating the trust to name a few. Some controversies arise simply over the language of the trust which require the courts to construe the meaning of provisions of the trust where there are ambiguities. Summary: In each of the above situations where litigation does occur, some or all of the procedures identified in the general litigation information will apply, depending on the manner of the dispute. This sketch only touches the surface as to the number and nature of disputes that may arise through the probate process. If you think you have a potential issue in probate, please seek the consultation of an attorney. |
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