Attorneys Guiding North Carolina Residents Through Inheritance Disputes
Estate litigation primarily occurs when beneficiaries contest or attempt to invalidate a will, estate, or trust. However, litigation may also be necessary in any number of circumstances. When this happens, it is not enough to be aware of the applicable statutes and laws regarding trust formation and will execution. It is also important to have the skill and knowledge to develop effective litigation strategies regarding these instruments. The estate dispute lawyers at Lohr and Lohr have assisted individuals in Raleigh and in more than 25 counties throughout North Carolina in all aspects of litigation, including pre-litigation advocacy, mediation, and conducting trials.
One of the most common legal proceedings regarding an individual’s estate is a will contest. The purpose of a will contest is to obtain a legal ruling on whether or not the instrument is valid, as well as a finding as to who is entitled to benefit from it. Several types of scenarios may lead to a will contest. For example, a decedent’s beneficiaries may have found two conflicting wills, may allege that a will has been revoked or amended, or may contend that undue influence, fraud, or lack of mental capacity affected the decedent, or testator.
First, it is important to understand that in the state of North Carolina, a will may be probated in one of two manners. The more typical of the two, probate in common form, is an informal probate procedure that does not require notice to or attendance of interested parties. The other method, probate in solemn form, requires that all interested parties be notified of the proceedings. A hearing is then conducted by the court, in which the witnesses to a will testify as to the execution of the instrument. After considering the evidence, the court will then enter an order either accepting or rejecting the will for probate.
However, a will may be challenged prior to either of these proceedings. Only an interested party, or an individual who may be entitled to benefit under the estate, may initiate a will contest. Once a will is challenged, a probate court must suspend its proceedings. Will contests can involve any number of circumstances. If there are multiple wills or testamentary documents, the court will consider all competing documents to determine which of them is valid. If the interested parties allege that the testator lacked mental capacity or was unduly influenced, a court will examine whether the testator knew and understood the effects and consequences of his or her actions. Once a court has determined the validity of a will, it may be probated.
Trust Disputes in North Carolina
Trusts are another type of estate planning instrument that often require litigation to resolve issues. Executors and trustees are roles that require the utmost good faith, diligence, and prudence. Because of this, executors and trustees are said to hold a fiduciary duty, which requires them to not only act in good faith but also distribute assets correctly and expeditiously. When there is a suspected breach of fiduciary duties, parties may seek to remove or change an executor or trustee. Tennessee law is very clear that a hearing must be held before a trustee is removed. A petition for removal must assert a ground for removing the trustee, such as the violation of a trust, mental or physical incapacity, or other good cause. At the hearing, the trustee is allowed to present evidence on his or her own behalf. A court may then make a ruling as to whether or not the trustee ought to be removed and appoint a successor trustee if necessary.
Legal action may also be required when trust assets are commingled with personal funds, or a trustee has not disclosed pertinent information. In these cases, the beneficiaries to a trust may request an “accounting” of the trust, which is a detailed description of transactions during a certain period. Litigation related to trust accounts can be highly-detailed and complex. The estate litigation attorneys at Lohr and Lohr have the skill and experience to keep your interests a priority when litigating these matters.
Litigation Involving Medical or Financial Decisions
We all want what is best for our loved ones. All adults are presumed capable of making their own legal decisions, whether financial or medical. Powers of Attorney are helpful to direct who will make decisions should an adult be unable to make their own decisions. It is important to note that a power of attorney merely allows a third party to make decisions for an adult. However, when dementia or mental illness is present, it may be necessary to remove an adult’s decision-making powers with a guardianship.
Often, family members don’t agree on who should make such decisions or what decisions should be made.
Contact a Raleigh estate litigation attorney today at (919) 348-9211.