Arizona Estate Litigation Lawyers
In a perfect world, a deceased family member’s valid will is submitted to probate. The personal representative acts responsibly and administers the estate according to the terms of the will, and the whole process moves forward smoothly. Unfortunately, it doesn’t always work that way. Sometimes, there are conflicts that must be resolved by the probate court.
At Lincoln & Wenk, we know how stressful conflicts can be for surviving family members, and how easily escalating litigation can drain away estate assets. We strive to build a foundation for a smooth, conflict-free estate administration with our comprehensive estate planning services. But, we also know legitimate issues arise, and sometimes litigation is necessary. You will hear these types of claims interchangeably described as “estate litigation” and “probate litigation.”
We’re here to help at every stage of the process.
How Does Probate Litigation Work?
Probate litigation is like a lawsuit within a larger case. Everything relating to the validity of the will and administration of the estate takes place in the probate court, within the open probate matter. The person initiating the probate litigation files a petition in that case, and the probate judge presides over the litigation.
Types of Estate Litigation in Arizona
Most estate litigation falls into one of two categories: challenges to the validity of the will and issues involving the personal representative. A few types of less common litigation fall outside these two categories.
Arizona Will Contests
The validity of an Arizona will may be challenged due to failure of formal requirements. This type of challenge isn’t very common, particularly if the deceased had their will prepared by an Arizona estate lawyer. The formal requirements are well known to attorneys who prepare wills and trusts, and errors in this area are unlikely.
However, occasionally errors of form do occur–especially if the deceased attempted to draft their own will–and they can render a will invalid. For example, a will may be deemed invalid if:
- The testator wasn’t at least 18 years old when the will was signed
- The will wasn’t signed by the testator
- The testator’s signature did not take place in front of two witnesses
- The witnesses were unqualified
Note that the absence of witnesses will not necessarily invalidate a will that is written and signed in the deceased’s own hand.
The more common and more complicated will contests involve issues such as:
- A dispute over which of two validly-executed wills is the current and valid will
- An allegation that the will or the testator’s signature was forged
- An allegation that the testator was not mentally competent when the will was signed
- An allegation that the testator signed the will under duress, or otherwise involuntarily
- An allegation that the testator was subject to undue influence, usually by a close family member or caretaker
Who Can Challenge a Will in Arizona?
If you believe your loved one has been coerced or tricked into signing a will, you will likely want to intervene. However, only certain people can contest an Arizona will. Arizona law limits standing for a will challenge to “interested parties,” which generally means:
- A beneficiary of the will
- A spouse or descendant of the deceased who would have inherited if the deceased had died without a will
- A creditor of the estate
What Happens When a Will is Invalidated?
If the will is found not to be valid, it will be set aside and the probate court will proceed as if the will had never existed. Typically, that means the deceased’s property will be distributed according to the Arizona law of intestate succession.
It’s important to discuss how that will play out with an experienced estate litigation attorney before you act. In some cases, invalidating a will leaves you worse off. Make sure you have the guidance you need to make an informed decision about how to proceed.
Arizona Challenges to the Personal Representative
An Arizona personal representative has a long list of statutory duties and a fiduciary responsibility to exercise care in carrying out those duties and act in the best interests of the beneficiaries.
Actions against the personal representative may include:
- A petition to remove the personal representative from the role/terminate their appointment
- A petition to void a prohibited transfer, such as a sale of estate property to the personal representative’s spouse
- A claim for damages caused by the personal representative’s breach of fiduciary duty
Removal for cause may occur when:
- Removal is in the best interest of the estate
- The personal representative made material misrepresentations in the process of securing the appointment
- The personal representative has disregarded an order of the court
- The personal representative is no longer capable of discharging their duties
- The personal representative has disregarded an order of the court
- The personal representative has mismanaged the estate or failed to perform one or more duties of the office
- The personal representative has disregarded the reasonable written wishes of the deceased regarding handling of their remains
While that list is long and some of the reasons for removal are broadly stated, personal representatives are not expected to be perfect. The fact that a beneficiary disagrees with the personal representative’s actions will generally not be enough to justify removal, nor will small mistakes or slight delays. A local probate litigation attorney is the best source of information about your specific situation.
Other Types of Estate Litigation
The two types of litigation described above are the most common types of probate conflicts. But, there are other possible actions within a probate case. For example, there may be a dispute about what the phrasing of a will means, with different potential beneficiaries arguing different interpretations. Or, a surviving spouse who wasn’t included in a will or didn’t receive as much as they are entitled to by law may elect against the will.
Talk to an Experienced Arizona Probate Litigation Attorney
Whatever the conflict, it’s important to have knowledgeable guidance if you’re considering estate litigation. An experienced attorney can help you assess the pros and cons of pursuing litigation, gather the necessary evidence to advance your claim, and manage the technical and legal processes necessary to move your claim forward.
The attorneys at Lincoln & Wenk know how important it is to ensure that your loved one’s true wishes are carried out, and to protect what they have provided for you. We also know how difficult the process can be, both practically and because of the additional strain on your family in an already-painful time. We are dedicated to helping you achieve the best result for you.
To learn more, call 623-294-2464 or fill out the contact form on this site.