Fiduciary Disputes & Litigation

Fiduciary Litigation

Unfortunately, circumstances surrounding estate planning and disbursement can result in a certain level of hostility which may leave some individuals unsatisfied with the results. Disputes can arise for a variety of reasons. From a disgruntled beneficiary believing they are entitled to a larger estate share, to an individual being influenced in changing their estate plan away from their natural family members. In the most extreme cases, some may find it necessary to litigate disputes that arise after an estate has been administered.

When disputes arise, the attorneys at North Carolina Estate Planning & Fiduciary Law provide a full range of litigation experience to help find solutions. Though estate planning is the largest portion of our practice, we are primarily trial attorneys. While every matter is unique, we understand the range of issues that can cause problems. The most common fiduciary disputes include issues surrounding:

  • Declaratory Judgments
  • Trust Modifications, Reformations and Terminations
  • Breaches of Fiduciary Duty
  • Will Caveats
  • Spousal Elective Share Proceedings

The attorneys at North Carolina Estate Planning & Fiduciary Law have helped individuals from all sides of these disputes to overcome the legal challenges that can arise in the course of estate and trust administration. Our team of experienced and knowledgeable fiduciary litigation attorneys can make the difference between a positive and negative outcome overall, and at each point throughout the process.

Types Of Fiduciary Disputes

Disputes regarding an estate or a trust almost universally centers on one or more parties disagreeing as to the disposition of another person’s property. Some disputes arise after death while others can develop before an individual passes away. The most common disputes surrounding wills and trusts involve making a determination on the following issues:

  • Whether a document actually reflects the testator’s intentions.
  • Whether the testator was mentally or physically competent to understand the document signed or that it controlled the manner of their property disposition at the time of their death.
  • Whether the testator was coerced, forced, or unduly influenced by another to sign a document that did not actually manifest their wishes.
  • Whether the terms of a will are contrary to North Carolina law
  • Whether the document was properly drafted or contained insufficient underlying directives, or
  • Whether the interpretation of a provision within the document is appropriate and aligns with the testator’s intentions.

Other common issues that frequently arise with respect to the administration of an estate include:

  • The ability of the personal representative to properly administer the estate
  • The existence of conflicts of interest which create an adverse relationship between the personal representative and other interested parties
  • Whether a personal representative has negligently or intentionally breached a fiduciary duty owed to the estate or other interested parties

The attorneys of North Carolina Estate Planning & Fiduciary Law are available to assist with all types of fiduciary disputes, either by direct representation with our clients or through our association with another attorney or law firm. We are well equipped to handle all types of disputes during all phases of the estate’s administration including litigation if necessary. Our goal is to guide our clients in litigation prevention and assist in managing dispute resolution. Our attorneys are knowledgeable about all facets of estate matters and can help you make informed decisions.

Declaratory Judgment Actions for Estates & Trust

When a fiduciary or a beneficiary is uncertain about their legal rights and obligations related to an estate or trust document the court can issue clarification through a declaratory judgment. North Carolina law permits a party with an interest in an estate or a trust to request that the court issue an order declaring the rights, duties, and interests of parties in connection with an estate or trust.

A request for declaratory relief can arise not only out of disputed interpretations of a document’s language but also as a means to provide some level of security to a fiduciary when a document is less than artfully drafted and the document’s intent is not entirely clear on its face.

Trust Reformations, Modifications & Terminations

At North Carolina Estate Planning & Fiduciary Law our attorneys represent trustees and beneficiaries in connection with consensual and contested proceedings to reform, modify, or terminate otherwise irrevocable North Carolina trusts. North Carolina’s Uniform Trust Code permits a trustee or beneficiaries to petition the court for approval to modify, reform, or terminate a trust for the following reasons:

Circumstances exist that were not anticipated by the creator of the trust
Modification or termination will result in the furtherance of the purpose of the trust
A termination of the trust is warranted if its continued existence would be impracticable or wasteful or impair the trust’s administration

In limited circumstances, North Carolina’s Uniform Trust Code permits a trust to be modified or terminated without the involvement of the courts. However, a nonjudicial consensual modification requires the written consent of each of the trust’s grantors and all of the trust’s beneficiaries, including contingent beneficiaries. If one or more of the grantors is deceased or incompetent, or one or more of the trust’s beneficiaries is unable or unwilling to consent, then a court-ordered modification or termination is required.

Will Caveats

The Latin term “caveat” means, for legal purposes, a challenge or contest to the validity of a deceased person’s last will and testament. A person who challenges the validity of a will is referred to as a “caveator.” A person who defends the validity of the will is called a “propounder.”

The most common challenges to a will’s validity involve:

  • Lack of testamentary capacity
  • Undue influence
  • Fraud or forgery
  • Mistake
  • Improper execution; and
  • Revocation

Whether you are a personal representative, an executor of an estate, or a caveator, our skilled estate litigation attorneys can help you navigate the process through court to ensure the deceased’s wishes are carried out, and the inheritance rights of the beneficiaries are protected.

Spousal Elective Share Proceedings

The purpose of North Carolina’s elective share statute is to prevent the partial or complete disinheritance of a surviving spouse, regardless if it was intentional or unintentional.

Only a surviving spouse may file a claim with the court for an order awarding an elective share from the deceased spouse’s estate. The claim must be filed during the surviving spouse’s lifetime, and within six months after Letters of Administration or Letters Testamentary are issued to the personal representative of the deceased spouse’s estate.

Unless waived by the decedent’s personal representative and the surviving spouse, the court is required to calendar a hearing to determine the value of the surviving spouse’s elective share no later than six months after a petition for an elective share has been filed by the surviving spouse.

As a general rule, the value of a surviving spouse’s life estate is based upon the value of all property over which the deceased spouse had a controlling interest at the time of death. Therefore, the elective share calculation not only considers the value of a decedent’s probate assets but also the value of:

  • The death benefit of any life insurance policy insuring the decedent’s life and over which the decedent had the authority to designate a beneficiary
  • The value of any qualified retirement plan assets (Code Sec. 401(k), IRA, or defined benefit plan) over which the decedent could designate a beneficiary
  • The value of all bank accounts, including accounts owned as joint tenants with rights of survivorship with another person and accounts designated as payable-on-death (“POD”) to another person upon the decedent’s death
  • The value of any asset held in a trust over which the decedent had a presently exercisable general power of appointment at the time of death (including the value of such a trust created by another person)

There is no dispute that North Carolina Courts have experienced an exponential increase in the amount of trusts and estate litigation in the past several years. Our senior partner, Jim Hickmon, is a Board Certified Specialist in Estate Planning and Probate Law with decades of experience in assisting clients in all aspects of estate planning. He has earned a reputation for excellence through his efforts to protect client interests in high-stakes trust and estate disputes. He and his team at North Carolina Estate Planning & Fiduciary Law are leaders in North Carolina trust and estate fiduciary litigation.

To get information and legal answers for your circumstances the first step is to contact us for a confidential consultation at (704) 248-6325, or complete our online form.


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