While most estates may be probated without significant contention, conflicts occasionally arise. Conflicts may occur due to disputes over inheritances, challenges to the validity of a will or trust, questions about the mental capacity of the donor, suspicions of undue influence over a donor, or issues regarding the continued operation and management of a business. During a time of grief and loss, these issues can be especially difficult. Clients facing such challenges know that the Wills, Trusts and Estate Litigation attorneys at Tharrington Smith can help guide them through the delicate and sometimes painful issues when they arise in this difficult context.
Challenges to the validity of a will or trust often involve mental capacity and whether the donor was of sound mind when the will or trust was made. A donor must understand that he or she is making a will or trust and the nature and amount of property the donor is devising. The donor must also freely decide the persons who will receive the donor’s property upon his or her death.
Influence over a donor when a will or trust is made can also be questioned. The possibility of undue influence is sometimes raised if the donor was dependent upon an unexpected beneficiary due to frailty or illness or if the donor’s property is left in a surprising manner, such as instances in which close family members are not named as beneficiaries. Our attorneys seek to resolve disputes in a way that allows the parties to express their concerns and to find a solution that is mutually beneficial. When resolution is not possible, we work to protect our clients’ interests through the court system.
Circumstances that may prompt you to call upon us:
- Removal and Replacement of Executor or Trustee – Whether an executor or trustee voluntarily resigns or is sought to be removed (due to neglect, incompetence or misconduct), there are legal principles and procedures that may apply. Our attorneys will analyze the circumstances and applicable law, and provide thoughtful advice for a deliberate and prudent course of action. This may include obtaining the court’s approval of an executor’s or trustee’s resignation or removal and subsequent appointment of a replacement executor or trustee.
- Dissolution of Trust – Trusts are established for a variety of reasons (such as avoidance of estate taxes or preserving assets left to a beneficiary who may not manage such assets well) and are sometimes complex. It is often more difficult to dissolve a trust than to create one, and trust dissolution can trigger Internal Revenue Service scrutiny. Our attorneys will work to ensure that proper steps are followed to minimize unintended results from a trust wind-down.
- Modification of Trust – Generally, only revocable trusts can be modified, but there are some circumstances that allow irrevocable trusts to be modified or terminated, such as when all beneficiaries agree to such modification or termination or with court approval. Tharrington Smith attorneys will analyze your trust documents to determine if exceptions under the North Carolina Uniform Trust Code may be used for modification or termination of your trust.
- Breach of Fiduciary Duty – Executors of estates and trustees of trusts are considered fiduciaries and required by law to act in good faith and in the best interests of the heirs and beneficiaries. Should a breach of fiduciary duty occur (such as an executor or trustee making decisions based on self-interest, misappropriating funds or failing to keep an appropriate accounting of property and funds), legal action may be required to address the breach, which may include removing the person from his or her fiduciary role. Our attorneys can assist in handling the required court proceedings, from the assembly of evidence of such fiduciary breach through the presentation of your case to the court and examination of witnesses during the hearing.
- Improper Transfer of Funds or Property of Trust or Estate – A trustee or executor may knowingly or unknowingly violate the law when transferring funds from a trust or an estate. For example, transfers from funds established for minors are usually subject to the many requirements under the Uniform Transfers to Minors Act. Improper transfers of funds or property from a trust or an estate can be a breach of fiduciary duty. Tharrington Smith attorneys assist clients in determining if an improper transfer has been made and if so, can assist in pursuing appropriate remedies.