Any legal contest that arises over a decedent’s assets can be characterized as inheritance litigation. The litigation might be over the decedent’s will and its validity, over missing assets, or to determine the rightful beneficiaries of a decedent’s estate. Common examples of situations that fall under the umbrella of inheritance litigation include:

• Contesting the validity of Decedent’s will or trust on the grounds of undue influence, lack of capacity, or lack of testamentary formalities
• Breach of fiduciary duty by a Personal Representative
• Breach of trust against a trustee
• Determination of paternity
• Reforming or modifying a trust
• Breach of fiduciary duty litigation
• Claims by and against the Decedent’s estate
• Challenging beneficiary designations on life insurance policies,  bank accounts and other non-probate assets

Contingency Inheritance Litigation

A few lawyers throughout the country handle inheritance disputes on a contingency basis.  For Florida matters, please contact Jeffrey Skatoff, who has been handling inheritance disputes throughout the State of Florida on a contingency basis for almost 20 years.  

Frequently, inheritance litigation can be anticipated. The following situations are common causes of inheritance litigation.

Unnatural Estate Plans

Estate plans that do not treat siblings equally, or disinherit a child, often result in inheritance litigation. An estate plan leaving decedent’s estate to a non-family member is also a common situation that breeds inheritance litigation. For example, perhaps a caregiver that cared for the decedent during the last few months of decedent’s life suddenly becomes the primary beneficiary of decedent’s estate.  Decedent’s the prior plan divided decedent’s assets equally between decedent’s children. Decedent’s children are now completely disinherited.  Or, perhaps a late-in-life spouse, markedly younger than the decedent, inherits all of decedent’s assets.  Perhaps one sibling is left the entire estate. while the remaining children are suddenly cut out. In all of these instances, inheritance litigation can be anticipated.

Inter-family Discord

Families that simply do not get along, or that contain one “bad apple” are often involved in inheritance litigation. Often a decedent will explain why the will is structured the way it is, but it is perceived as inequitable by one member of the family. A very common scenario is children of a first marriage fighting with the second spouse. Often times when people enter into a second, later-in-life marriage, they will enter into a prenuptial agreement so that children from a first marriage are protected. Unfortunately, even with such planning, inheritance litigation can sometimes not be avoided when a family member feels wronged.

Bad Behavior during Decedent’s Lifetime

Sometimes beneficiaries learn after a loved one’s death that a trusted caregiver or relative actually took advantage of their loved one. Perhaps a will was procured to favor the bad actor, or decedent’s bank accounts were depleted. Often the caregiver goes to great lengths to appear loving and trustworthy during decedent’s lifetime. Only upon decedent’s death do the relatives learn of the exploitation that occurred. Such betrayals often lead to inheritance litigation by the relatives of the loved one. In the case of a breach of fiduciary duty, perhaps by a trustee, it is often only after decedent’s death that the beneficiaries discover bad behavior.

What Should I Consider Before Pursuing Inheritance Litigation?

Before initiating inheritance litigation, you should ask yourself some basic questions.

Do I have standing to pursue inheritance litigation?

Whether or not you have standing is a threshold question to ask before pursuing inheritance litigation. Generally, you have standing if you will be affected by the outcome of the litigation. If you are challenging the purported last will of the decedent, you have to either be a beneficiary under the prior will, or be an heir at law if there is no prior will. To challenge a trustee’s administration of a trust, you have to be a beneficiary of the trust. In order to demand that assets are returned to decedent’s estate, you have to be an estate beneficiary. If you are not going to benefit from a successful result of the litigation, you do not have standing.

Is there a reasonable explanation that I am not a beneficiary?

Before initiating inheritance litigation over a will or a trust, it is important to ask yourself if there is a reasonable explanation that you were not named as a beneficiary.  If you did not have contact with the decedent for the last five years, or never got along with the decedent, a court is unlikely to find it shocking that you were not named a beneficiary. Perhaps you are successful in your own right.  Decedent might have named other persons as beneficiaries because they are less fortunate. It is critical to consider if your situation is one that a court will feel compelled to “make right” by overturning decedent’s will or trust.

Was decedent capable of making decisions?

It is also important to consider decedent’s mental capacity at the time when the will or trust was executed, or when the bad acts occurred. A sharp decedent, managing his own finances and taking care of himself independently, likely had the capacity to make a valid will.  A court will be more likely to find that decedent knew what he wanted to do, and simply did it.  Alternatively, an ill decedent, with caregivers, who no longer independently cares for himself, might be more susceptible to undue influence.

Anyone considering inheritance litigation should review 5 Reasons Why I Regret Filing a Will Contest.