Estate litigation is what happens after a dispute arises over a will, trust, or other estate planning element. Disputes and disagreements can arise at almost any stage of the estate planning process, but some disagreements are more likely to lead to litigation than others. Litigation occurs when a person files a lawsuit and the dispute winds up in court.
Whether you are considering litigation or are worried about its possibility, talking to an estate planning lawyer about your questions is your best option. In the meantime, here are several of the more common areas that lead to estate litigation in North Carolina.
Fiduciaries play a key part in the estate planning process. Whether you are appointing a trustee to manage a trust, asking someone to serve as your agent under a power of attorney, or have named an executor in your last will and testament, disagreements about how much the fiduciary is entitled to receive as part of compensation can often lead to estate litigation. In many situations, for example, beneficiaries of the estate believe that the fiduciary received too much compensation. To challenge the amount received, these beneficiaries can sue the fiduciary in court.
Challenges to a Will
When people hear of estate litigation, they often think of challenging a will. Part of the reason many people think this is because will challenges typically come about once a very wealthy person has died leaving behind a very large estate. In such situations, estate litigation is more common because the potential beneficiaries of the estate have a lot at stake.
Estate Litigation, Arbitration, and Mediation
In some situations the two sides in a disagreement can prevent estate litigation by participating in either mediation or arbitration. Both mediation and arbitration are forms of alternative dispute resolution, a way of settling disputes outside of court. With the mediator, the two sides agreed to sit down and discuss their disagreements. The mediator is there to help both sides come to an agreement on their own so they can avoid having to go to court.
Arbitration is a little different. In an arbitration setting, both sides present their cases to the arbitrator in a very similar way that they would if they went to court. The arbitrator has the ability to make a ruling in much the same way a court would.
Lack of Capacity
In some situations, a person might begin creating an estate plan while he or she is ill or suffering from a mental illness. Beneficiaries, or would-be beneficiaries, can often challenge these estate planning tools on the basis that the person didn’t have the requisite capacity at the time he or she created them.