Most Common Probate Disputes Frequently Asked Questions
Probate disputes can arise for a number of different reasons after someone passes away. Even when that person believes they have done their due diligence to put together a comprehensive estate plan that helps to avoid probate, certain matters may still emerge and require the assistance of a knowledgeable estate administration or probate dispute attorney. Some of the most common situations require the insight of a lawyer because they can be extremely complex and difficult to resolve.Q: What to do if I suspect that the estate executor is engaged in fraud or embezzlement?
The estate executor plays an important role in distributing the assets of an individual person's estate. However, if that same person violates their fiduciary duty to manage the money properly and is engaged in fraud or embezzlement, you may need to request that they be removed from the case altogether. Consulting with an experienced estate administration lawyer is strongly recommended.Q: What if I don't believe the assets have been distributed properly?
An estate executor and administrator maintains an important responsibility to review all of the relevant information inside the estate and ensure that it passes to the beneficiaries as the decedent intended. If assets have been distributed improperly due to fraud or undue influence by one of the other beneficiaries forcing the executor to behave in a certain way, this could form grounds for a legal dispute.Q: Can I file a legal dispute if I suspect that the executor or administrator's legal rights and responsibilities have been compromised?
If there is a conflict of interest or you believe illegal activity has happened, thus compromising the responsibilities of the executor or administrator, you need to gather your evidence and prepare to share it with an experienced estate administration dispute attorney.Q: If there are disputes over who should serve as the executor or estate administrator, what should we do?
Since the probate process can be extremely complex and indeed the overall management of an estate represents unique challenges, it is important to realize that retaining legal representation as soon as possible after a dispute emerges over who should serve as the executor or estate administrator happens. In an ideal situation, the decedent will have prepared the appropriate legal documentation articulating who will step into this role. But if this cannot be guaranteed, you need to prepare for a potential legal battle.Q: What do we do if we want the administrator removed?
You have two primary opportunities to remove someone as the executor of a will if they have failed to execute their fiduciary responsibilities. This is through a probate petition by the beneficiaries or a lawsuit by the beneficiaries. The person who initiates either action must have some financial stake in the estate. The court will hold a hearing if the beneficiaries file a probate petition. The executor however, will get an opportunity to tell their side of the story.
If an executor fails to perform fiduciary duties and this leads to damages for the beneficiaries, they may be eligible to pursue a lawsuit. This is one of the most common reasons that executors are required to post bond prior to assuming office unless the will terms specifically waive this requirement. This is in essence an insurance policy that pays damages against the executor in the event that the beneficiaries have to file a lawsuit because of failure to execute fiduciary duty. This could lead to a civil fiduciary duty breach lawsuit in NY.Q: Do we have to pursue a lawsuit if we want to remove the executor?
Certain grievances against an estate executor may be resolved without going to court. The executor may agree to compensate the harmed beneficiaries for any financial damage suffered due to the executor’s fiduciary mismanagement. It is still strongly recommended that you have a legal representative to help you. A NY fiduciary duty dispute lawyer can help.