One of the main reasons individuals should seek experienced counsel when creating their estate plans is to ensure that the plan is comprehensive and plans ahead to minimize the chances of ambiguity and related disputes. However, even the most carefully crafted plans can lead to litigation surrounding an individual’s estate. Estate and trust litigation matters can be particularly challenging since they often pit family members against each other and make already difficult situations even more complicated after the death of loved ones. If you become involved in one of these trust or estate disputes, it’s important to seek experienced counsel knowledgeable about the complexities involved to help reach the best result.

What is Estate Trust and Estate Litigation? 

Estate and Trust Litigation, or Probate Litigation, covers a wide range of issues, including Will contests, trust contests, conflicts of interest, breach of fiduciary duties, self-dealing, and other related matters. Within these larger topics are specific issues that may need to be addressed in litigation. A Will or trust may be contested if there are claims of lack of capacity, improper execution, duress, fraud, or undue influence. A claim may be brought against a trustee or executor for breach of fiduciary duty if there are allegations of misappropriation of estate or trust funds, mismanagement of assets, fraud, and other types of misconduct. Unfortunately, after an individual dies, conflict may arise between surviving family members, which can lead to litigation if a family member or spouse is disinherited or when family members are treated unequally.

Common reasons for estate and trust litigation include:

#1. Challenge to a Will: Common challenges to a Will include allegations of lack of testamentary capacity, undue influence, improper execution, and forgery of legal documents. Lack of testamentary capacity means that the testator did not know or understand what they were signing and what that meant for their assets. Undue influence generally refers to when an individual exerts pressure on the individual creating or updating the Will or trust to unfairly benefit the influencer. Each state has specific requirements for how a Will should be executed and if those requirements weren’t met properly, the Will may not be valid and enforceable.

#2. Creditor Claims: Creditors may make claims against an estate in probate if they believe they have unpaid debts and are owed money from the estate. Sometimes these claim can impact real estate, bank accounts, or other assets.

#3. Breach of Fiduciary Duty: Executors and trustees are fiduciaries who have legal responsibilities to act in accordance with the terms laid out in the Will or trust. If an executor or trustee breaches a duty when performing their responsibilities over an estate or trust, beneficiaries of the estate or trust can bring claims against the executor or trustee. Common examples of breaches of fiduciary duties relating to executors or trustees include misappropriation of assets or misusing their authorities in ways that harm the beneficiaries, or not fully honoring an intended beneficiary designation whether a gift in a Will, Living Trust, or otherwise.

#4. Elective Share Claims: Many states, including Virginia, have laws providing a surviving spouse certain rights to the assets of the deceased spouse’s estate. If a surviving spouse is disinherited from a Will or receives less than what they are entitled to under the elective share laws, they can bring a claim against the estate to receive any additional assets they’re entitled to as part of the planning process.

#5. Guardianship: A guardianship refers to a matter where an individual petitions a court to have a guardian appointed to a loved one, minor children, or other third party because the loved one is in some way incapacitated or lacks the capacity or ability to handle their own financial affairs or healthcare needs.

#6. Elder Law: Generally, elder law disputes involve the exploitation of elderly individuals, including when they are pressured into changing estate planning documents against their wishes, including Will provisions or beneficiary designations on annuities, IRAs, other retirement accounts, insurance policies, brokerage accounts, or other types of expected financial benefit or future inheritance. This can include duress or undue influence as previously mentioned, but with a focus on instances where elderly loved ones were manipulated or their medical or long-term care is at stake.

When Do I Need an Estate Litigation Attorney? 

There are many potential parties to estate litigation and several different types of individuals may need to consult with an estate or trust litigation attorney to file or manage probate actions. For example, beneficiaries of an estate or trust or heirs of a deceased individual may need to seek advice and assistance from an estate litigation attorney if they believe an estate or trust is not being administered properly or if the executor or trustee is breaching their fiduciary duty to loved ones. On the other side of that issue, executors, trustees, and other fiduciaries may need to seek counsel if someone has brought a claim against them based on their conduct in their capacity as a fiduciary of a Revocable Living Trust, Special Needs Trust, or other type of trust.

Parties on any side of an estate or trust dispute can become involved in estate litigation in some way. Any individual that believes they may have a legitimate claim involving a Living Trust, Last Will and Testament, or any aspect of an estate should seek experienced counsel that can advise them of their rights and options and review any related legal documents. Estate litigation can be especially difficult since it often involves family and other personal relationships. It’s important to find a knowledgeable estate planner who can balance the legal matters with those relationships.

Contact Us

An experienced estate planning attorney can help you properly craft an estate plan to best avoid probate court. However, in the event that estate litigation is required, the estate planning attorneys at the law firm of General Counsel, P.C. have experience in a wide array of estate and trust litigation disputes and can assist you no matter what side of the dispute you are on, or to simply advise about the probate process.

We would welcome the opportunity to help you navigate the complex estate planning and estate litigation process and help you protect your interests. Contact us today at 703-556-0411, email, or if you’re ready to commit to protecting yourself and your loved ones, schedule an appointment to have a conversation about how we can help!

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    Virginia has long recognized and enforced “no contest” clauses for Wills in probate, but the Court of Appeals of Virginia recently refused to adopt a good faith and probable cause exception to no contest clauses. No contest clauses are strict provisions designed to deter bitter family disputes during probate. This exception would allow a beneficiary...


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