The death of a loved one brings sadness, and we would like to think that
we can turn to other family members for support. We would like to think
that the person chosen to manage our loved one’s estate is honest
and will do so in everyone’s best interest. But what happens if
the person charged with acting as personal representative refuses to provide
information? What happens if you see your dad’s Last Will and realize
that everything goes to the brother who never quite got his act together?
What if you notice that the Last Will is dated only few months before
mom passed, after she was already receiving nursing home care for Alzheimer’s?
CONFLICT . . . AND COMPLEXITY
These “what if” scenarios will result in conflict with and
hostility towards the person appointed personal representative, and may
result in conflict among the other family members. The scenarios also
raise the complex issues of breach of fiduciary duty, undue influence,
and testamentary capacity. A lot of factors come into play in these types
of cases. A person has the right to leave his or her entire estate to
one child and exclude the other children. One child receiving the bulk
or all of the estate does not, by itself, prove foul play. A condition
such as Alzheimer’s can progress from showing minimal symptoms to
severe loss of memory and thinking abilities. An Alzheimer’s sufferer
can have good days and bad days, or be “fresh” in the morning
after a good night’s sleep and fade as the day draws to a close.
A diagnosis of Alzheimer’s does not, by itself, prevent a person
from signing a will. Therefore, these cases can result in long and costly
litigation that require the employment of experts in forensic psychology
and possibly forensic accounting.
Personal property is the legal term for “stuff around the house.”
Sometimes these items can be very valuable, but most of the time the value
is more sentimental than financial. A lot of resentment and hostility
arises simply because a family member donated an item to charity that
they believed was “junk” when in fact it brought back fond
memories of another family member’s childhood. Before you decide
to litigate over personal items, think of the costs. Remember also that
the remedy is the market value of the item, which is generally less than
most people believe it should be, and certainly cannot make up for the
lost sentimental value. A court generally cannot force a third-party who
received the item to give it back.
TRUSTEES CAN BE HELD ACCOUNTABLE AS WELL
Trusts have become very popular as a way to “avoid probate.”
However, just because a trust can be administered without a court proceeding
does not mean that a trustee cannot be held accountable. Like personal
representatives, trustees are held to very high standards and have a duty
to manage the trust in the best interests of the beneficiaries. If a trustee
breaches any of these duties, they can be sued in court just like a personal
Breaches of duty, undue influence, and testamentary capacity are complex
issues that can result in long and costly litigation. Our probate attorneys
will thoroughly review your case and provide a road map to help you make
an informed decision before moving forward with any litigation.