Estate litigation can be many things. It can be stressful and emotional. It can be time-consuming and costly. Many hope to avoid the litigation process altogether. But the bottom line is that in some situations, estate litigation is absolutely necessary to secure justice and ensure that a loved one’s final wishes are respected.
You don’t have to navigate the estate litigation process alone. Instead, seek guidance from a capable and experienced lawyer at Onyx Law Group. We provide trusted legal advice and clear, effective strategies for dispute resolution.
Estate litigation can be used to address a variety of issues. In today’s blog post, we will have a look at common types of estate disputes, the parties involved, and the process you can expect to resolve disputes. We’ll also discuss ways to avoid estate litigation.
The property left behind by a deceased person is called their “estate.” A deceased person’s estate typically includes real estate, assets like bank accounts, investments, vehicles, and other personal belongings. When a dispute arises over a deceased person’s estate, estate litigation may be necessary to enforce a right or claim to the estate.
Estate litigation can be used to address a broad range of issues. Assets such as RRSPs, insurance proceeds, and trust property pass outside of a deceased person’s estate. Disputes about the true ownership of these types of assets are dealt with in estate litigation matters. Challenges to gifts or property transfers made during the lifetime of a deceased person can, too.
Estate litigation also covers disputes relating to Powers of Attorney, Representation Agreements, Trust Deeds, valuation of estate assets, misappropriation of assets, and myriad other issues relating to the administration of the deceased’s estate (for example, a claim to remove an executor; a claim challenging executor’s fees). When probate matters become contentious, estate litigators draw upon their litigation experience to obtain court orders needed to administer the estate of a deceased person.
Proper estate planning is the best way to avoid estate litigation. A comprehensive estate plan that clearly articulates a person’s wishes, that is updated regularly, and that is prepared with the assistance of an experienced estate lawyer goes a long way toward reducing the potential for legal challenges.
The main objective of an estate planning lawyer is to structure affairs to transfer the maximum amount of wealth to a person’s chosen beneficiaries with the least amount of delay, while also protecting against the possibility of a legal challenge. We have a team of highly skilled estate law lawyers who can help create a comprehensive estate plan that incorporates planning for future incapacity to ensure that financial, legal, and healthcare issues can be appropriately managed.
Our estate planning lawyers regularly assist clients with the preparation of Wills, Representation Agreements (for health care), Powers of Attorney, family trusts, disability trusts, Alter Ego Trusts and Joint Partner Trusts, and other estate planning tools.
If a problem or issue arises after a loved one’s death, it may be possible to reach a resolution through direct negotiation with the interested parties, usually with the help of a trusted estate lawyer. But the reality is that it will likely be necessary to start estate litigation proceedings. As mentioned above, that does not foreclose the possibility of settling issues after proceedings have been commenced, through informal negotiations or structured mediation. In other words, while you may not be able to avoid starting litigation, you may still be able to avoid having to go to trial to reach a resolution.
The estate litigation process involves complex court procedures which can vary depending on the nature of the claim. An experienced estate litigation lawyer can explain the specific process and procedures relating to your particular claim. Here is a general overview of the steps in the process:
A trial is not always necessary to resolve an estate dispute. In many situations, legal proceedings will have to be started, but there are opportunities to reach an out-of-court resolution along the way. In fact, most estate litigation is resolved without the need for trial, whether it be by negotiations between lawyers and parties, or through the use of mediation.
The parties that will be involved depend on the issues at stake. For example, an estate litigation claim may be brought:
· Against the deceased’s estate by disinherited children or a disinherited spouse
· In the name of the deceased’s estate to recover misappropriated funds or assets
· Against estate trustees or the deceased’s personal representatives by the estate beneficiaries for delay, breach of fiduciary duty, or some other misconduct on the part of the executor or administrator
· Against a third party suspected of wrongdoing (e.g., a caregiver suspected of fraud, elder abuse, or undue influence)
· By creditors of the deceased’s estate to recover a debt owed by the estate.
It is important to note that there are complex court procedures and strict notice requirements that must be followed when starting estate litigation. Here is an example: if you want to bring a will variation claim, the surviving spouse of the deceased person, all of the children of the deceased person, and all of the beneficiaries named in the Will must be included as defendants in your lawsuit and provided with notice of the civil claim. They must be properly served as their interest could be affected if your claim to vary the Will in your favour succeeds. You are also required to name the executor of the Will as a defendant and serve them with the claim.
Roles and responsibilities vary based on the particular party and the dispute in question. In the example given above, the spouse, children, and named beneficiaries in the Will must be listed as defendants because the outcome of the claim may impact their interest in the estate. However, it is up to them to decide if they wish to participate or take a position in the estate litigation once they have been given proper notice of it.
The executor’s role in a will variation claim is also typically limited. An executor is supposed to stay neutral in most types of estate disputes. The executor doesn’t take a position on whether the gifts in the Will are adequate, and they are not to take sides between the claimant and the other parties.
The situation is different if a creditor or other third party sues the deceased’s estate or there is some claim that must be brought on behalf of the deceased’s estate. The role of the personal representative (that is, the executor or administrator) is more active in these situations. The personal representative has the same rights that would have been available to the deceased to bring a claim or defend against a claim (Wills, Estates and Succession Act, s. 150).
BC estate litigation can be used to address a variety of disputes, such as:
When it comes to estate litigation, we are empathetic, creative, and focus on the results you want. Our estate litigators provide legal advice and effective dispute resolution strategies to beneficiaries, executors, administrators, trustees, guardians, and other family members who are involved in estate litigation matters.
The main objective of our estate litigators is to achieve a speedy resolution that is just and fair for our clients. Depending on your needs and the issues in contention, our estate litigators can bring a lawsuit in court and/or explore alternative dispute resolution options such as negotiation, mediation, and arbitration. If out-of-court settlement is not possible, we have the skills and experienced to take your case to trial.
We believe it’s important to know your legal rights and obligations before making any decisions. That’s why we offer 30-minute free consultations to give you the opportunity to discuss your matter with a passionate and knowledgeable Onyx team member who can advise you on the best steps forward.
Consult with our experienced team at (604) 305-2923.
Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at
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