I Object! But Can I?

Upon the death of a person, an administration of their assets occurs to ensure that the proper individuals receive their due shares.  Depending on the amount of assets and the type of administration, the process may be more or less complex.  In cases where an individual died with relatively few assets (under $150,000), abbreviated procedures may be used.  In cases where an individual did not engage in estate planning or wrote a will, the probate process will probably be necessary.  For individuals who created a trust, the trust administration process must begin.  Of course, during the process the beneficiaries are identified along with their respective shares and this sometimes results in hard feelings.

In very small estates, there are often not enough assets to create significant issues and in intestate transfers (no will), assets pass according to law.  In wills and trusts the deceased person has specifically directed how their assets should be managed and distributed; depending on the circumstances, it is possible to challenge these directions.  If you are considering a challenge, there are a number of issues you must assess before initiating that challenge.  The first consideration is whether you are in a position to challenge at all.

The primary individuals who may  always contest the terms of a will or trust are individuals who would inherit if no will existed, known as “intestate beneficiaries.”  Generally, children and spouses are included in this group.   Grandchildren (or their guardians) may be eligible when children have died before their parent.  Parents may inherit from children who did not produce grandchildren.

Additionally, an “interested person” may generally object to the will or trust or to how it is being administered.  Creditors of the estate may file a claim for payment.  Aside from typical creditors, such as credit card companies, informal creditors may also prove their claim.  Generally, the claim will have to be supported by some sort of contract.  If the decedent said he would give you his entire art collection, but failed to direct it in his will or trust, it is probably not enforceable.  However, if the decedent said that he would give you his entire art collection in exchange for taking him to the doctor every week, it is possible that you have a valid claim against the estate.

Proving your claim will, in almost all cases, be an uphill battle.  Proving incapacity or undue influence during the creation of the estate plan can be extremely difficult.  The capacity needed to create an estate plan is relatively low.  Additionally, the safeguards that frequently exist in the estate planning process, such as witnessing and attorney involvement often indicate that the decedent intended his or her directions.  Similarly, proving the existence of a binding contract can be difficult, particularly when not in writing.

Proper, regularly updated planning tends to prevent disputes.  Speaking to your estate planning attorney about the appropriate manner of dealing with distributing less to beneficiaries than their intestate share and with specific gifts to unrelated people may prevent litigation and expense during the administration process.

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