Probate Litigation

Probate Litigation Attorneys – Magellan Law

Probate Litigation means going to court to resolve legal disputes about what happens to a deceased person’s property. It could also include going to court to determine what happens to an incapacitated person’s assets or who will make decisions about the person’s health care or legal matters. The “going to court” part is most often caused by a person not having proper documentation specifying what they want to happen to their property, money, and possessions, or who should make decisions about their personal care if they are not able to do it themselves. Even if they do have a Will, the Will can be contested, resulting in another form of probate litigation. Oftentimes, the “family feud” gets heated due to heightened
emotions, stressful situations, tense conversations, and the dynamics of past conflicts within the family.

Sometimes probate litigation is not between family members. Instead, it is the family against an outside party such as a financial adviser, a caregiver, or a
significant other/partner. These litigation cases can be tricky depending on the situation, especially if the case involves a significant other who may have been contributing to the household and/or mortgage for years, yet there is no legal marriage. In such a case, the person is not entitled to anything, unless the deceased person signed a Will or other legal documents.  On the other hand, if the deceased or incapacitated person did sign legal documents in favor of the significant other, there can be different issues such as undue influence or financial exploitation.

It is increasingly common for an adult child to take care of an elderly parent. The parent can many times receive better and less expensive care this way than in a nursing home, but it can be taxing on the child, who often cannot hold another job. Many end up sacrificing years of their lives to care for the parent, or parents.

What also often happens in this sort of situation is that the parent verbally promises to make it up to the caretaker child. Perhaps the parent verbally promises that the caretaker child will get the house when the parent dies. The problem is such promises are legally unenforceable unless they are in writing, and in proper legal form that Arizona courts recognize, and accept. The proper way to document such an arrangement is to either comply with the requirements for a Will (assuming that the house is not held in joint tenancy with someone else, and is not in a trust) or a trust amendment. Alternatively, there can be a written contract to provide caretaking services, with terms of payment. If these parents reside in Arizona, it is important to meet with or have a phone consultation with Scottsdale estate planning lawyer to ensure that any such arrangements are properly documented.

Whatever the cause, if you think you need to go to court to resolve a family conflict, you want an attorney with both probate experience and litigation experience. Probate litigation involves a unique set of statutes, case law, and court rules. Magellan Law can help with all of your probate litigation needs. Contact us at any time to discuss your questions or concerns.

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