Probate - Administration and Adversity

Whenever someone passes away who owns property in the State of Maryland, whether or not they live in Maryland at the time of their death and whether or not  they are a citizen of the United States, Maryland laws come into play to insure the steady and secure transition of ownership of that property.  This legal process has been defined as “probate,” and it can range from the simplest of matters to a complicated route through courtrooms involving significant expense in both time and money.

 A standard probate administration involves:  submitting the Last Will and Testament ; having a fiduciary (Personal Representative) appointed; collecting and organizing the decedent’s sole-named property, preparing an inventory; paying creditors, if any; paying the  personal representative’s fees, attorney’s fees, and court costs;  and finally, the ownership of the estate’s property is legally transferred to the beneficiaries/heirs and the estate is closed. 

Probate is intended to be a streamlined process, however, there are many times when controversies or confusion arise, and the law is prepared for these situations as well. Probate can evolve into contentious challenges to the will (will contests), the personal representative (alleged fiduciary duty breaches),  the determination of beneficiaries, and many other issues.

How can a Maryland probate lawyer help you?

Experienced estate attorneys always counsel families to avoid a legal fight – if they can

When a loved one or family member dies, fights and controversies can arise concerning the property that must be distributed after death. At our firm, we believe that estate lawyers representing beneficiaries, heirs, friends, family members, or designated charities in the Last Will & Testament or other testamentary documents (for example, a Trust) should attempt at first to informally negotiate an honest, fair and prompt response to any estate dispute or probate problem.  Often, the experienced counsel of an estate attorney to the grieving parties can be enough to resolve the property issues quickly and in a satisfactory manner for everyone.

Sometimes, a legal fight cannot be avoided – negotiated settlements

In some matters, problems are more serious and probate lawyers will need to find a more structured resolution to the controversies.  Whether a family is facing a will contest, trust litigation or probate lawsuit, an experienced probate lawyer can organize a more formal settlement process and thereafter structure the settlement to protect his client's rights.

There will be occasions of wrongdoing -- a full probate lawsuit in a Maryland courtroom can be necessary

Unfortunately, there will be occasions where the death of a loved one or family member may be followed by a lawsuit over his property -- and this lawsuit will be a necessity.  There are situations where only a courtroom challenge can stop wrongdoing that has occurred.

When a family member, second spouse, neighbor, or home health care aid improperly places himself into a Last Will and Testament or Revocable Trust -- and that defendant refuses to negotiate fairly -- it may become crucial for a probate lawyer to file a lawsuit and litigate the case in a Florida courtroom to have an inheritance or gift protected and returned.

For example, in a Last Will and Testament dispute, an heir usually has some basic facts to support that he has been unfairly omitted from the will, removed from the trust, or not included in the estate administration or probate process. At our firm, experienced probate lawyers investigate these facts to determine whether a case exists.

A good, aggressive estate lawyer combines the client's beliefs with the opinion of the estate attorney. The probate lawyer take the facts and then adds the Maryland statutory and case law that establishes clear rules regarding probate litigation and grounds for contesting the validity of a will.  Together these will assist the client in making the final decision on whether to retain an estate attorney and to proceed with the matter.  Kennedy Law Firm is very capable of combining these numerous factors to advise potential clients.

What kind of lawsuits?

•  Evaluating facts and evidence with an experienced probate lawyer may lead to the conclusion that grounds exist to support a lawsuit for an undue influence claim (challenging whether the testator freely and voluntarily made a will) or a lawsuit based on lack of testamentary capacity (challenging whether the testator had sufficient mental capacity to understand the nature, details and ramifications of a Will).

  Regardless of the actual lawsuit filed, the analysis must be done in a comprehensive manner by an experienced Maryland probate lawyer before engaging in estate litigation or a probate challenge. For example, the estate attorney may discover that the witnesses to the Last Will and Testament did not sign in the presence of the testator or each other, which causes the will to be invalid under Maryland law, and presents additional grounds to file a lawsuit.

Trust litigation may challenge the validity of a trust in a manner similar to a Will contest, where undue influence or lack of capacity are alleged, or it may include a trust construction proceeding, where an estate lawyer is hired to seek court interpretation of the document language to determine the rightful trust beneficiaries. Trust construction is necessary when the trust document is unclear or is contradictory regarding the identity of beneficiaries, the allocation of estate and/or income taxes, the interests of lifetime beneficiaries, interests of remainder beneficiaries or the operation of gift and distributive property provisions. The probate lawyer is hired to obtain a judicial decision on how the trust language should be read. Trust reformation is another specialized area of trust litigation. Here, the court is asked to reform or change a trust, either to fix a trust problem or to modify it to reflect the true intention of the testator. Sometimes, our firm is hired by a beneficiary to monitor the trustee’s activities or to compel a fair and accurate accounting and other times we are hired by the trustee to help ensure that he or she is doing the job correctly and not inadvertently breaching a fiduciary duty to the beneficiaries.