Thomson Reuters
Mon – Fri, 8 a.m. – 4 p.m. (PST)

Attorneys and Inheritance Disputes

By: Allan C. Bell
Chair, Trusts and Estates Practice Group, Sills Cummis & Gross PC

Common Types of Wills and Inheritance Disputes

There are several types of will and inheritance disputes. One of the most common disputes involves children over particular assets when there is an unequal division, or even disinheritance. There are also issues in multiple marriage scenarios in connection with the balancing act between the new spouse and the children from the prior marriage. Another significant area is asset titling and beneficiary designations for non-probate assets. Clients are often confused about titling and beneficiary designations, whether it is a qualified retirement plan or life insurance, not to mention joint tenants with right of survivorship. A testator may execute a will specifically disposing of certain assets to a particular beneficiary, but the probate assets passing under the will do not match the non-probate assets passing pursuant to the beneficiary designations or asset titling.

There is no hard and fast group, or types, of estates that are most frequently contested. It depends on whether there is a beneficiary who feels he has been aggrieved. Consider the example of a simple estate, with two children, a residence, a brokerage account, and a qualified plan. The client has one child living in the residence, so the client does his estate planning the old-fashioned, incorrect way by designating that child on the deed. Now, upon the client’s death, the residence belongs to that child, and the other child does not receive an equalizing bequest. We frequently encounter situations like this.

The most justified disputes are probably those in the area of asset titling and beneficiary designations. However, sometimes the most justified are also the most unsuccessful, unless it can be shown that the beneficiary designation or the asset titling was a result of a serious error, confusion, or even undue influence. Undue influence occurs when the weak or vulnerable decedent was persuaded to title an asset in a particular manner or designate a beneficiary of a qualified plan or life insurance.

The Role of the Attorney

When we represent clients, our role runs the gamut. Sometimes we are representing the actual fiduciary; sometimes I am appointed as the executor or the trustee, or both. Sometimes we are defending an action, and sometimes we are representing the plaintiff beneficiary. If our client is the beneficiary, then the typical goal is to obtain appropriate relief. If our client is the estate, then the goal is to maintain the status quo. If our client is the institution, then the goal is to defend the institution from the presented claims. Overall, our role is to maintain our objectivity and be as fair as possible to the beneficiaries.

Typically, the parties involved in a dispute are the aggrieved beneficiaries, the fiduciaries, the executors, and the trustees. The fiduciaries are sometimes family members, third-party friends, other advisors, such as attorneys or accountants, or corporate banking institutions.

How we help in the handling of inheritance disputes depends on who we are representing. If we are representing the beneficiary, then we try to ascertain as many of the facts as possible and evaluate the case and success potential to prevail. This goes back to managing the expectations of the client. Often there is information the client is not aware of, and it can be resolved with a few phone calls or letters.

Managing Disputes Over Wills and Inheritance Chapter 6, 2014 ed.

This article is an excerpt from Managing Disputes Over Wills and Inheritance Chapter 6, 2014 ed. This excerpt was provided by Aspatore Law Books, part of Thomson Reuters. Aspatore books were originally created for a legal professional audience, but have since become popular with non-attorneys thanks to easy-to-understand writing and smart, real-world insights. You can find the entire book available for purchase on the Thomson Reuters Legal Solutions website by clicking the book title linked above.