After a person dies, the estate must be dispersed in accordance with their desires and Alabama state law. However, it is common for loved ones to disagree about distribution of property or certain stipulations in the decedent’s will.
For example, when an heir is not bequeathed what he/she considers a fair share, or were totally cut-out of the will they may file a lawsuit. The beneficiaries may also have a concern about property management matters, such as financial investments or other decisions the fiduciary enacted. When the fiduciary is one of the beneficiaries, apprehension may arise concerning conflict of interest.
According to Hall Tanner Hargett (www.shoalslawyers.com), any of these scenarios could lead to long and contentious litigation. Good estate litigation attorneys are completely transparent and will walk you through the complicated process. You should get a clear understanding of what you can expect, potential resolutions before going to trial and risks vs. rewards of a court trial
Estate and trust litigation a.k.a. probate litigation is a specific field, which is ruled by both the Probate Code and general regulations of civil litigation. The various stages of probate litigation replicate phases of civil litigation: excepting in probate court pleadings are called “petitions” and “objections”, followed by normal discovery, motions, discussions about settlements and trial.
Again, in contrast with civil court, probate court is known as a “protective court” whose responsibility is to protect: beneficiaries of a trust, heirs and minors. Generally, the fiduciary is the sole party represented in probate court. In civil litigation there are two opposing parties or a plaintiff and defendant.
The probate court is charged to examine documents presented by the fiduciary to verify whether or not requests are appropriate. Dissimilar to civil cases where the court’s ruling is solely binding on participating parties in the litigation, orders of the probate court are binding on all parties, even when interested parties weren’t given notice.
Let’s clarify various legal terms that denote people who might seek estate and trust litigation:
Executor(s) or Executrix – Person who is appointed in will to carry out decedent’s wishes. Protects assets of estate. Pays bills, taxes, etc.
Administrator(s) – When an individual dies suddenly, without a will, the court will appoint administrator(s) to conclude the deceased person’s will. Often, administrators need legal representation to support their decisions.
Beneficiaries – These are persons indicated in the will to inherit the deceased individual’s estate or trust. By rights, beneficiaries should get the estate but difficulties can and do occur.
Trustees – They manage the estate until beneficiaries come of age.
Heirs – When heirs aren’t bestowed property in the will, legal entitlement issues can arise.
Fiduciary – Personal representative who is bound to act on another person’s behalf, i.e. trustee for beneficiary.
In Alabama, prior to probate, all interested parties are allowed to contest the will’s validity and the manner in which it has been managed. In the event the individual dies intestate (without a will) heirs of the estate can file. Provided the heir(s) has not previously contested the will they may file a formal complaint in the Alabama circuit court.
In Alabama, the surviving spouse will be awarded the total estate, in the event there are no living parents.
Mediation should be the first consideration in contested probate cases as a viable option, opposed to the more expensive, lengthy trust and estate litigation. The mediator acts as an objective third party who helps the beneficiaries reach a resolution. Most mediators are experienced probate attorneys or retired judges.
A majority of the time, mediation is successful; however, it customarily involves compromise. Although people may balk at the idea of compromise when it involves their principles, everyone generally gets more money, because they will not have to pay significant legal fees if the case does not go to trial.
But, what if mediation is unsuccessful? Your estate and trust lawyers would prepare your case for trial. First, they would take depositions from the opposite parties, finalize necessary court documents and execute pretrial motions. Again, experienced attorneys would explain each phase of the process and prepare you for questions that typically surface during this type trial.
Another service you should expect from good estate and trust attorneys is a careful accounting of their legal fees. Some fees can be paid by the trust, but others would be your responsibility.
Expert lawyers know how to assess the probability factors in probate litigation. They can give offer you fairly accurate guesstimates about best and worst outcome in court or suggest your interests would be better served by agreeing to compromise following mediation.