Wichita Probate Litigation Attorneys Manage Will and Trust Challenges
Knowledgeable representation for estates and beneficiaries
Probate litigation is a formal legal dispute over a decedent’s testamentary documents, such as a will or a trust. Although necessary at times to ensure a just allocation of estate property, probate litigation can produce a lasting rift between family members while depleting the estate’s assets. These circumstances make it very important that you retain experienced and reputable legal counsel. Bever Dye, LC is a long-established and highly regarded probate litigation law firm. We offer reliable advice based on decades of experience. We work aggressively to resolve issues without litigation, but provide skilled court representation when a trial is necessary.
Skilled management of will contests in Wichita
Will contests often arise when the testator’s bequests run contrary to the heirs’ expectations. Although an heir does not have the right to sue for disappointment, there are several grounds an heir can allege to invalidate a will in whole or in part, including:
- Flawed execution — The will must be in writing and signed by the testator in the presence of two witnesses who must also sign. If the testator is unable to sign, a party who is not one of the witnesses may sign the testator’s name. The witnesses should be disinterested parties, and they must be competent. Violations of these rules could be grounds for invalidating the will. However, Kansas also allows for oral wills and self-proving wills if certain conditions are met.
- Undue influence — The law seeks to protect elderly testators who might be manipulated by self-serving individuals who have special access. When a person, such as a caregiver, arranges to have a will written or amended, and the will subsequently favors the caregiver, an argument can be made that undue influence was exercised to produce the will.
- Coercion — Undue influence can be a subtle exercise of emotional pressure on a vulnerable testator, but coercion is the heavy-handed use of threats, emotional blackmail and even physical abuse to compel a testator to change a will.
- Incapacity — A testator must be at least 18 years of age and of sound mind. Elders with dementia or even momentary lapses of clarity do not have the capacity to execute or amend a will.
- Fraud and misrepresentation — In this type of case, fraud is practiced upon the testator, who is deceived about the contents of the will or the effect the terms of the will are going to have.
- Forgery — This ground alleges the will is a fake, produced to deceive the court.
The court can invalidate a will in whole or in part. If only part of the will is invalidated, the affected assets pass according to Kansas inheritance laws. If the court throws out the entire will, the entire estate is subject to the inheritance laws. To make sure your will or a loved one’s is valid, consult a reputable estate planning attorney.
When has a trustee committed a breach of fiduciary duty?
The administrator of an estate or the trustee of a trust has a duty to manage trust assets for the benefit of the beneficiary and to carry out the terms of the trust in good faith. Beneficiaries can bring breach of fiduciary duty actions to challenge probate administration or trust management, citing substandard or unethical performance that has caused some damage. Examples of questionable performance include:
- Embezzlement — The trustee uses his position to steal from the trust funds.
- Misappropriation of assets — The trustee uses trust assets for his own enjoyment.
- Imprudent investments — The trustee loses money through risky investments. Because all investments have an element of risk, the plaintiffs have to prove by a preponderance of the evidence that a reasonably prudent trustee would not have made such an investment.
- Self-serving investments — Investing trust funds in a company the trustee owns creates a conflict of interest, even when the investment would otherwise be sound.
- Refusing to disperse benefits — Grantors who establish trusts place conditions on the release of assets to beneficiaries. The trustee has a duty as fiduciary to interpret those instructions accurately and adhere to them. If conditions are not met, the trustee cannot disperse assets. However, if the conditions are met, a beneficiary can challenge the trustee’s refusal to disperse.
- Failing to keep records or provide an accounting — The trustee is required by law to keep accurate records of the trust’s finances and must open the books when a reasonable request is made.
In many cases, fiduciaries are held personally liable for losses to the trusts they oversee, so if the trust loses value due to a breach, the fiduciaries must reimburse the trust.
Experience resolving a wide variety of contested matters
Probate is the process by which the court validates a decedent’s will and clears the way for the transfer of assets to beneficiaries. Probate disputes come in many forms:
- Will contests — An heir can challenge the validity of a will based on several factors, such as flawed execution, undue influence, coercion, incapacity, fraud and misrepresentation. The court can invalidate the will in whole or in part. When the court invalidates a will, assets must pass according to Kansas inheritance laws.
- Will and trust construction suits — An interested party requests that the court interpret the meaning of language in a testamentary document.
- Guardianship contests — These are suits to decide supervision of a person (called the ward) who does not have capacity to make legal decisions. A ward may be a child who lacks capacity due to age or an adult who has lost capacity due to unconsciousness or dementia, and has not done advanced planning or designated power of attorney.
- Trust modification and trust reformation suits — A formal request that the court correct terms of documents establishing a trust to implement the grantor’s wishes more effectively.
- Trust termination suits — A suit to dissolve a trust because its purpose has been fulfilled or because its purpose has become impossible to fulfill.
- Breach of fiduciary duty actions — This is a challenge to the management of a trust, citing substandard or unethical performance that has dissipated trust assets or otherwise damaged the trust. In many cases, fiduciaries can be held personally liable for losses to the trusts they oversee.
- Estate debtor/creditor issues — Before assets can be released to beneficiaries, the estate must settle affairs with debtors and creditors. This can involve collection actions against debtors and defense against creditors with specious claims.
Our attorneys are committed to developing the best strategy for fairly and expeditiously probating an estate. We resolve disputes through a variety of methods, including traditional negotiation, mediation and trial in state court.
Let our Wichita probate litigation attorneys handle your probate dispute
Bever Dye, LC represents beneficiaries, estate representatives and trust fiduciaries in a variety of probate litigation actions. We look for creative solutions to avoid expensive and divisive court battles, but we litigate cases aggressively when a trial is necessary. Call us at 316-263-8294 or contact us online to schedule an appointment to discuss your legal concerns.
“Mr. Hughes masterfully turned a contentious opposition lawyer into a sniveling apologist by employing a superior knowledge of the law and unrivaled communication skills. It was perhaps the first time in my career that I felt embarrassed for the other side. I say “Bravo, Mr. Hughes.” Don’t hesitate to use this lawyer.”
– 5.0 Review ★★★★★
“I was looking for a lawyer for my father’s estate/probate. I came across Mr. Hughes and hired him. He had great reviews. I am so lucky I found him. He responds very quickly. He went above and beyond with my case. Even put together my paperwork to sell my father’s house. He does what he says he is going to do. Great person and excellent lawyer. Highly recommended.”
– 5.0 Review ★★★★★