Phoenix Probate and Trust Litigation Lawyers
Wills, trusts, and other estate planning can eliminate many issues that might arise among beneficiaries and other interested parties. Still, conflicts do arise. Sometimes, they’re valid: a beneficiary may have reason to believe that their deceased loved one wasn’t of sound mind when they signed a will, or a beneficiary may have evidence that a trustee is diverting trust assets for their own benefit. Sometimes, the conflict comes from a disgruntled family member who simply isn’t happy with what they’ve received.
Arizona law provides a remedy for family members and other interested parties who have evidence of an issue such as a will that wasn’t executed as the law requires or a trustee who isn’t following the terms of the trust. But, not every disagreement over a will or trust is a legal matter. And, both probate litigation and trust litigation can drain the assets of the estate or trust. So, it’s important that you talk with an experienced probate and trust litigation attorney to learn more about the validity of your claim, the evidence that will be required, and how the expense of the proceedings will impact what you have to gain.
To consult one of the experienced probate and trust litigation attorneys at Kadish Associates Law Group, call 480-967-2688 right now, or fill out the contact form on this site.
Probate Litigation in Arizona
Probate litigation generally falls into one of two categories: challenges to the will or challenges to the executor/personal representative.
Challenging an Arizona Will
An Arizona will may be contested if it doesn’t meet the requirements for a valid will. For example:
- A will may be challenged if the deceased was under the age of 18 when it was executed, since only a legal adult can execute a valid will in Arizona.
- A will may be challenged if it wasn’t properly signed and witnessed, unless it falls into a narrow exception, such as a holographic will.
- A will may be challenged if there is reason to believe that the deceased was not of sound mind when the will was executed, often due to dementia or similar conditions.
- A will may be challenged if an interested party has reason to believe the will was forged, or that the signature was procured by fraud or duress.
- A will may be challenged if there is evidence that the deceased was subject to undue influence, usually by a caretaker or other person they depended on.
If the will is found to be invalid, the court proceeds as if it had never existed. If there is a prior will that was valid except for having been revoked in the valid will, that will is reinstated. If there is no valid prior will available, the estate will be distributed under the Arizona law of intestate succession.
Some wills contain a “no contest” provision that penalizes a beneficiary who challenges the will. This provision has no impact on an interested party who receives nothing under the will. And, state law prohibits enforcement of a no contest provision if there is probable cause for the challenge. An experienced estate litigator can help you determine whether such a clause is likely to apply in your case.
Challenges Involving the Personal Representative
The personal representative of an estate is appointed by the court (usually based on the nomination made in the will) and has a long list of statutory duties and a fiduciary responsibility to the beneficiaries of the estate. Any person with an interest in the state may petition for the removal of the personal representative. However, the fact that you don’t agree with everything the personal representative is doing is not grounds for removal. Instead, someone seeking to remove the personal representative must show one of the following:
- Removal is in the best interests of the estate.
- The personal representative misrepresented material facts in procuring the appointment.
- The personal representative has disregarded an order of the court.
- The personal representative has become incapable of discharging their duties.
- The personal representative has mismanaged the estate or failed to perform any duty of the role.
- The personal representative has disregarded the deceased’s reasonable written wishes for treatment of their remains.
In some circumstances, the interested party may instead petition the court to restrain the personal representative from taking certain actions, or to compel the personal representative to take certain action. For example, if a beneficiary of the estate learned that the personal representative was planning to sell a piece of real estate worth $750,000 for $100,000, they might petition the court to prohibit that sale.
Trust Litigation in Arizona
Arizona trust litigation is similar to probate litigation. One key difference is that probate litigation is conducted within the probate case, whereas someone bringing suit relating to a trust must file a lawsuit.
Challenging the Validity of a Trust in Arizona
The validity of a trust may be challenged if the trust is lacking any of the necessary components to form a valid trust in Arizona. Much like a will, a trust may also be challenged if:
- There is evidence that the grantor of the trust lacked the mental capacity to act.
- The grantor was subject to undue influence.
- The terms of the trust are unclear.
If a trust is invalidated by a court during the grantor’s lifetime, the assets in the trust will revert to the grantor. If a court finds a trust to be invalid after the grantor’s death, the assets in the trust will be treated like the assets in the grantor’s estate. If you are a beneficiary of a trust and are considering challenging the trust, it’s important to first understand what will happen if your challenge is successful.
Removing a Trustee in Arizona
A trustee is subject to removal for a material breach of trust, or if lack of cooperation among co-trustees is interfering with administration of the trust. If the court finds it in the best interests of the beneficiaries, a court may also remove a trustee because:
- Unfitness, unwillingness, or failure to administer the trust for the good of the beneficiaries.
- There has been a substantial change of circumstances and removal does not conflict with a material purpose of the trust.
- All beneficiaries request removal, and removal does not conflict with a material purpose of the trust.
Get Knowledgeable Guidance for Probate or Trust Litigation
Both probate and trust litigation can be complicated. Both require proof of specific, narrow statutory elements. And, both require a clear assessment of the costs and benefits of pursuing litigation. Your best first step is to consult an experienced probate and trust litigation attorney. To learn more about how the seasoned litigators at Kadish Associates Law Group can help, call 480-967-2688 right now.