Probate and Trusts

Our attorneys assist clients in organizing their estates for the most efficient transfer of assets to heirs based on client wishes. While this is often a hard topic to think about, it is a critical one to consider so the assets of your estate are managed appropriately after you and/or your spouse’s death.

The degree of your estate planning will determine the ease or complexity of settling your affairs once deceased. We encourage you to work with one of our estate planning attorneys for the proper creation and implementation of your estate plan.

TRUST LITIGATION

Our attorneys have helped hundreds of clients establish trusts as part of their estate plans to help avoid estate taxes and to accommodate complex family issues, particularly arising from second marriages. Special Needs Trusts are also ideal to protect disabled children or other family members who currently, or may eventually, rely on governmental assistance.

In some situations, litigation may become necessary to resolve familial disputes, and we have attorneys who are particularly experienced in this type of litigation. Examples of when this type of litigation is triggered are:

• Trust beneficiaries, often siblings or other family members, believe the trustee has breached his or her duty with respect to provisions of the trust.
• A trustee needs to have the court approve a plan of distribution to the beneficiaries.
• A trustee requests court permission to amend an irrevocable trust.
• Other issues arise in the administration of the trust.

PROBATE COURT

When there is a last will and testament, informal probate may be available to avoid attending a court hearing. An application is filed with the court along with the deceased’s will.  In some instances, this can all be accomplished in a single day if all beneficiaries sign a Consent and Waiver. 

Alternatively, formal probate may be necessary.  This can be a simple process or it may lead to litigation, much like in trust litigation.  In the simple case, a one-time hearing is held a few weeks after filing an initial petition. If there are no objections, the court will issue, at the time of the hearing, an Order and Letters appointing a personal representative for the estate.

When someone dies without a will, it is called an intestate case.  This requires a special petition be filed with the court to determine the heirs and to appoint a personal representative for the estate.  This process requires formal probate and results in a probate hearing. 

If an estate has no real property and is less than $100,000 in total value, a special “small estate” procedure is available.  A small estate can be transferred without the involvement of the probate court. A Small Estate Affidavit is the only requirement.