The passing of a loved one is always an emotional time. This is particularly true when there exist strained relationships either between the deceased and their survivors or between family members themselves. To make matters worse, tense feelings, resentment, or old grudges can often lead to poor decisions when it comes to handling the estate of the passed loved one.

This is where estate litigation comes in. To help survivors resolve disputes with assets such as property, possessions, or money, a qualified and experienced litigation team is crucial. Because the issues are often more emotional than business-related, litigation specialists are sensitive to family dynamics, and the raw emotions often involved with a fair division of assets and responsibilities

In an ideal world, there is little to no conflict when it comes to settling an estate, and in most cases, there isn’t. Unfortunately, problems do arise. The first thing an estate litigation lawyer will explain is how the law works and what steps need to be taken to come to a resolution. Furthermore, they will make clear that they not only work for the estate, but for all of the beneficiaries as well as any third parties that have a keen interest. The person, the estate litigation lawyer, will work most closely with is the person assigned as the executor of the deceased’s estate. Their priority will be reinforcing the wishes of the recently passed loved one and possibly addressing such situations as:

• Examining the validity of the will if one exists
• Interpreting provisions of the will
• Managing assets
• Overseeing how the division of the estate’s assets proceed
• Addressing any issues related to individuals who have taken assets of the estate without permission
• Handling disputes involving shares of the estate by dependents or other beneficiaries
• Dealing with any family law issues connected to the estate
• Responding to individuals or entities who feel that have a claim to part of the estate

In working on behalf of a beneficiary—as opposed to the estate or executor, an estate litigation attorney will:

• Provide input in regards to the validity of a will if one exists
• Help secure specific assets for a particular beneficiary who feels they have a valid claim
• Assess how properties and assets are distributed should there be a question
• Consider exceptional circumstances surrounding estate claims due to dependency
• Serve as arbitrator in the management of funds connected to the estate

When it comes to third parties who have expressed a request or interest in the deceased’s estate, the litigation lawyer will act in accordance with the law to determine the validity of outside claims and react appropriately.

What If There Is No Will Or Named Executor?

In situations in which the deceased did not leave a will or assign an executor for their estate, the state will appoint an individual to administer the estate as it enters probate. With the assistance of the estate litigation team, the executor will submit a death certificate to the government, who will then verify that the deceased has indeed passed on. They will then determine that the administrator is qualified to represent the estate and send documentation confirming that the executor officially represents the estate.

What Happens When Disputes Cannot Be Resolved?

This is where probate litigation comes into play. When aggrieved parties feel there was wrong being done in the handling of an estate, an estate litigation lawyer in Utah will guide the beneficiaries through the court system to resolve such issues as:

• Administrator appointments
• Contested wills
• Executor fee disputes
• Surviving spousal claims
• Guardianship issues
• Formal accounting of assets and expenses
• Removal of trustees in those cases where a will forms a trust

The estate litigation team will handle investigating and researching claims and legal details set in the will or estate law. They will then file the appropriate petition to the court that states the relevant facts and laws. From there, litigation officially enters the discovery phase in which evidence is sought and examined. This includes document subpoenas, bank statements, and sworn depositions. Before a case is brought to full trial, the judge will usually order the parties to enter mediation—a non-binding and non-adversarial resolution process. Parties will meet with a mediator who is typically a lawyer or retired judge to see if disagreements can be worked out without the expense of a full trial.

Should mediation fail, the next step is preparing for the trial. This will include obtaining depositions from expert witnesses when applicable, re-examining the evidence, subpoenaing witnesses and obtaining statements, making opening and closing statements, and preparing for cross-examination of witnesses.

It’s a complicated process, which is why ending with mediation is always the preferred outcome.

Then comes the trial—usually a “bench trial” in that it will be presided over by a judge but not necessarily a jury. Depending on the court schedule and availability, the trial may last several days, but not consecutively. Nor may the trial work out to everyone’s satisfaction, and an appeal may be filed, meaning more time and expense.

When An Heir Or Beneficiary Begins Probate Litigation

• To contest the appointment of a particular person as administrator
• To have the court order the executor or administrator to perform a certain act
• To have the court instruct the executor or administrator to account
• Two reclaim property that rightfully belongs to the probate estate
• To suspend the executor or administrator’s powers
• To remove the executor or administrator
• For damages against the executor or administrator
• To appoint a successor executor or administrator

Probate Litigation Is Different From An Uncontested Probate

Both probate litigation and probate take place in probate court. Probate is the court supervised process of gathering, managing, and distributing the assets of a deceased person to the people who are supposed to inherit it. Probate litigation will spring from an open probate estate. But it is important to know most probates do not involve litigation.

The Difference between A Will And A Trust

It’s very common for people to interchangeably use the terms will and trust. They are two different documents that govern separate legal entities.

A will is the document which states who will be in charge of a probate, who gets the property (and on what terms), and who will be in charge of the probate. This requires filing of the petition for probate, a number of supporting documents, and an order from the probate court appointing the executor of the probate estate.

A trust is usually created to avoid probate. The settlor (the person who created the trust) changes legal title to their property, so that it’s in the name of the trust. When the settlor dies, the assets in the trust will be managed and distributed according to the specific terms of the trust.

A probate and a trust are two separate and different legal entities. Assets in a trust do not go through probate. Any assets the settlor failed to title in the name of the trust may go through probate.

There are many different reasons that you, as an heir or beneficiary, may start probate litigation. The common element for all of them is that you have a reason to distrust the executor or administrator. This may be due to their misconduct, failure to act, or lack of communication. Many people, when they learn their loved one has died, will turn to the person they believe is the executor and request a copy of the will. Seems simple enough, but sometimes you might find yourself in a situation where this doesn’t happen and litigation becomes the next step. Some of those problems might be:

• The executor doesn’t respond or refuses to provide a copy of the will, it is usually necessary to start probate litigation.
• When the executor or administrator has been administering the probate estate for a year or longer and refuses to account or promises to account but fails to actually do it. If this happens, then it’s time to begin probate litigation.
• When an heir or beneficiary becomes aware that an executor or administrator is either taking probate assets to which they’re not entitled or using probate assets to benefit themselves, family, or friends. If this happens, then it’s time to start trust litigation.

In order to decide if you need to engage in trust litigation, make sure you know the difference between trust litigation and probate litigation.

Trust Litigation versus Probate Litigation

Just as there is a difference between a trust and a will, there is a difference between trust litigation and probate litigation. Both trust litigation and probate litigation take place in the probate court. The primary difference is who is actually involved in the legal process.

• Probate litigation involves the people and the property involved in a probate estate.
• Trust litigation involves the people and the property that is owned by the trust.

A probate estate and the trust estate are two separate legal entities. It’s possible that a person who passed away may have both a probate estate and a trust estate. It’s important to note that probate litigation will not directly affect how the trust is distributed. By the same token, trust litigation will not directly affect how the probate estate is distributed.

Does The Will Accurately Respect The Wishes Of The Settlor?

If there is a will, does the will accurately state the settlor’s wishes?  It’s important to note that this only requires your common sense answer, not a legal definition. If the will doesn’t leave property to the people you expect or in proportions that make sense, then you may have a problem. If some terms look unusual, don’t jump to conclusions. Ask yourself:

• Is there a schism in the family?
• Was there a substantial length of time that people didn’t talk to one another?
• Has someone shown a long history of being irresponsible?

If the answer to any of these questions is “yes,” that may be the reason property wasn’t left equally to the children or why someone else was chosen to serve as the executor. Using your memory to honestly answer these questions is critical. Usually, parents leave their property in equal shares to their children. But that isn’t required by law. Something that happened in your family history may help explain a good reason to depart from this common pattern. If there is a good reason then you may not want to contest the will. If there isn’t a good reason then consider a will contest.

Is The Executor Carrying Out The Terms Of The Will?

Assuming you are satisfied with the terms of the will, then evaluate whether the executor is acting at a businesslike pace to carry out its terms. Again, you’ll want to use a common sense analysis. Some things to consider:

• If the executor has taken possession or control over the estate’s assets, are they being maintained properly and in a reasonable timeframe?
• Was an inventory and appraisal filed with the court within 120 days of appointment?
• Has notice been given to the three state agencies entitled to notice?
• Have potential creditors been sent a creditor’s claim notice?
• Has the executor indicated distributions will be made according to the terms of the will?

Not every probate goes smoothly and not every executor is failing to perform if they haven’t hit these benchmarks. Here too, a common sense analysis is important. If there are bona fide problems the executor has run into, then performing some of these tasks may be delayed. If there has been a delay without a bonafide reason then you may want to consider filing a petition to remove the executor and replace him or her with someone competent to do the job.

The Cost Of Probate Litigation

The cost of probate litigation in Utah depends on two things.

• If you are an heir or beneficiary of a probate estate trying to get your rightful inheritance, or the executor or administrator
• If you are paying for litigation on an hourly basis or using a contingency fee.

If you are an heir or beneficiary seeking to get your rightful inheritance, then nearly any probate litigation attorney in Utah and most especially Ascent Law Firm Attorney will be glad to represent you. You’ll typically pay using a traditional hourly fee arrangement. A smaller number of attorneys will agree to take on your case on a contingency fee basis.

How to Pay For Probate Litigation: Hourly Attorney Fees

Hourly fees in Utah probate litigation cases are just what you expect them to be. You pay the law firm for the time they put into the case and the various costs incurred in pursuing your case. Attorneys are paid an hourly rate, or a range of rates if several attorneys are working on the case. Paralegals are paid at a lower hourly rate.

In addition, various out of pocket costs will be incurred. When you hire an attorney under an hourly agreement, there is no promise of any kind of outcome. What you are paying for is the time the law firm puts into your case.

There is no way in advance to know exactly the total cost under an hourly fee agreement. The range can be so wide that it can’t be estimated at the start of a case. It is impossible to know at the beginning of the case exactly how much time will go into your case and what the total out of pocket costs will be.

Understand that an estimate is just that, an estimate. If your case ends early then the money held in your attorney’s client trust account will be returned to you. If the money in the client trust account runs out, and your case is not finished, then expect to have to deposit more money in the client trust account.

Factors That Influence Hourly Fees

When you hire an attorney on an hourly fee basis, you can expect to be asked for a retainer. A retainer is money that is deposited in the firm’s client trust account. The money sitting in this account can only be used for the work and costs for your case. You should get a monthly invoice from the law firm, which will show you the hours spent on your case, who performed the work, what work they performed, and details for any costs related to your case. Costs include items such as filing fees, deposition transcripts, copies of documents, process service, etc.

There are any number of out of pocket costs that may be incurred for your case. Those costs will be itemized in your monthly invoice.

In an hourly fee retainer agreement, if your case ends and the initial retainer has not been entirely used, whatever is left gets returned to you. The flipside to this is if the firm has exhausted the amount you first deposited, then you must replenish funds into the client trust account to keep the firm working on the case. As much as you might not want to hear this: You may have to deposit more money multiple times depending on the amount of your retainer, amount of work performed, and out of pocket costs incurred.

Contingency Fees

Under a contingency fee agreement, you will not pay anything unless and until that attorney has gotten you something of value in return. “Something of value” could be money, real estate, tangible items, etc. It is unlikely that you will know everything of value owned by the trust at the start of the case. Whatever you win that has financial value then becomes the basis for whatever the payment will be under the contingency fee. Most firms will offer some form of a tiered contingency fee agreement.