Estate Litigation Lawyer Phoenix, AZ
How Does an Estate End Up in Litigation?
Looking for one of the top estate litigation lawyers Phoenix, AZ has to offer? Look no further than Kamper & Estrada, PLLC. A lot of people think estate planning is only for the rich and old, but that’s just not true. Everyone can benefit from even a little bit of estate planning.
What is an Estate Plan?
An experienced estate planning lawyer Phoenix, AZ is proud to rely on will include the following, at a minimum, in your estate plan:
Last Will and Testament
Your Last Will and Testament is a legal document that allows you to clearly communicate your end of life wishes for your assets and for your family members.
Financial Power of Attorney
A Financial Power of Attorney allows you to appoint a representative to manage your finances should be unable to do so for yourself.
A comprehensive healthcare plan usually includes the following documents:
- Healthcare Power of Attorney
- Living Will
- HIPPA Authorization
A Living Trust
Kamper & Estrada, PLLC can also provide information on setting up a living trust. A living trust is an entity created during the Grantor’s lifetime to hold and manage assets. There are many advantages in creating a trust, including:
- Avoiding Probate
- Minimizing Stress
- Nomination of Successor Trustee
- Preserving Privacy
As an estate litigation lawyer Phoenix, AZ has confidence in might attest, executing a Will, or especially a Trust, is often considered a secure form of estate planning. While that is generally true, there are still a few things that can cause a Will or Trust to be challenged and end in litigation.
Who can Challenge a Will or Trust?
Only someone with “standing”, also known as an “interested person” can challenge a Will or Trust. An interested person who is someone who:
- Is a named beneficiary of the Will or Trust
- Would benefit if the Will or Trust was found invalid
Interested persons may include spouses, children, heirs, devisees, or anyone who may have a claim against the estate. Always consult with an estate litigation lawyer Phoenix, AZ approves of to determine if you have standing to challenge an estate plan.
Challenges to an Estate Plan
Lack of Capacity
Challenging a Will or Trust on the basis of capacity typically requires showing that the decedent did not understand the nature and extent of the property or the identity of natural heirs. Usually, this kind of challenge is backed by medical evidence showing mental impairment.
A challenge of undue influence means the decedent did not make the Will or Trust of free choice, but solely due to the improper influence of another person.
Estate planning documents can be challenged for fraud, such as when the decedent’s signature is forged. Sometimes a Trust that has been previously revoked is mistakenly administered.
Lack of Execution
Each state has its own laws, but as an estate litigation lawyer Phoenix, AZ endorses might tell you, estate planning documents must generally meet the following elements to be considered valid:
- The document is in writing (not verbal)
- The document is signed by the person who created it
- The document is signed and stamped by a notary
If a Will or Trust lacks any of the above elements, it becomes susceptible to challenge.
If a creditor comes forward and makes a claim against the estate, it could delay administration of the trust and potentially end up in litigation.
Removal of Trustee
An Executor or Trustee can be removed for incapacity, wrongdoing in the administration of the Trust, or breach of fiduciary duty. Removal of an Executor or Trustee will always delay administration and is usually ordered by a court.
Avoid Challenges and Litigation
Use a Lawyer
As an estate litigation lawyer Phoenix, AZ respects may recommend, always use a lawyer to create an estate plan. Cheaper online methods do exist, but hiring a professional is the best way to ensure that: 1) your assets are truly protected, 2) the estate plan follows current law, and 3) that your wishes are carried out legally and correctly.
Estate plans are created by humans and humans make errors. Your lawyer and their staff will proofread the estate plan, but you should, too. The smallest error in language could have huge ramifications, including affecting trust administration and opening the estate up to challenges.
The general recommendation is to review and/or update your estate plan every 3-5 years, or at any major life event. So, what constitutes a major life event?
- Marriage or Divorce
- Birth or Adoption
- Addition of Stepchildren or Dependents, such as incapacitated adults
- When a child turns 18
- Illness or Disability
- Death of a family member
- Death of a named guardian/trustee/personal representative/agent
- Career change
- Substantial increase or decrease of assets
- Change in life insurance coverage
- Purchasing a home
- Taking out a large loan
- Receiving a large inheritance or gift
- Changes in state Laws
- Addition of new state laws
- Moving to another state
Each of the above familial, financial, and legal changes require the knowledge of an experienced estate planning lawyer.