ESTATE LITIGATION (IS IT WORTH IT?)

By James W. Mallonee

Is litigation involving Estate Administration worth it? The short answer is probably not. This is especially true if one of the main characters needed to prove the source of litigation is deceased. The reason for this is that the main character who can state whether they consented to certain activities involving the distribution of their estate agreed or did not agree to the ultimate distribution outcome of their estate is deceased.

How a person’s assets are to be distributed is always decided by their Will or Trust if one exists, and if there is none, the intestate laws of the State where the decedent was domiciled. The Will or Trust directs how the Testator or Grantor wanted their assets to be directed following their death. The problem comes in when suggestions are made to the Testator or Grantor by outsiders who have managed to convince such Grantor or Testator to give it to someone they ordinarily would not. On the surface this would seem easy to determine, except that the person who can provide evidence of what they would do may be dead and can’t speak for themselves. Worse yet, they may be alive, but their mind is diminished to the point that they have no recollection of who is the target of their bounty.

In this author’s experience, to fully litigate an estate involving outside influences will cost approximately $100,000.00; all payable to the attorney and experts who will be making conclusions about the Testator or Grantor’s ability to make rational decisions when deciding on who gets what from the decedent’s estate.

The author’s office receives calls from individuals who claim that one sibling is getting an unfair amount of the parents’ estate. Sadly, this may be true, but unless Mom or Dad are still alive and able to communicate, there is little that can be done except to reach out to the person who published the Will or Trust and find out what were the circumstances under which the Will or Trust were created. Most times the representing attorney will not discuss the situation because of confidentiality. What makes it worse is that no litigation can take place prior to Mom or Dad’s death because the law does not provide for estate litigation prior to death. The reason for this is that Mom or Dad could revoke or change their testamentary documents prior to death.

What are the primary markers used to establish if someone has evidence of undue influence by an outsider or family member? The classic cases involve, a testator’s Will has been in place for multiple years and suddenly changes are made when a new person has entered into the daily life of the decedent. Other cases involve limiting a testator’s access to family members such as telephone calls, visits and letters with claims from an outsider that they have been abandoned. Additional signs of influence involve the gifting of tangible property (e.g. car) or suspicious withdrawals of cash from their financial accounts.

Thus, it would be a good idea to consider adding someone to a financial account, but only for copies of statements so that the person receiving copies of the statements cannot have access to the account, but can watch to make certain no strange withdrawals are being done without a third party’s notice. The down side of doing this is the Testator or Grantor may feel intimidated that someone is looking over their shoulder due to their infirmity; which is a difficult thing for an older adult to accept.

Florida has put in place new legislation to protect exploitation of the elderly. The new legislation increases the ability of an outsider or law enforcement personnel to determine if exploitation has occurred to a vulnerable adult (e.g. elderly or disabled person). There are also new laws on the books giving a financial institution the ability to prevent giving money away from a person’s account if it suspects exploitation.

If you suspect that a person is being exploited you should contact the nearest law enforcement organization’s economic crimes division and explain what is going on (this is not a 911 type call). Be sure to have some form of evidence available to prove your point. Alternatively, contact the elder adult’s children and let them know as well.

So, is it worth litigating an estate? Sadly, there is no right answer to that question, but you should have that discussion with the attorney of your choice before jumping into a lawsuit.

This article is intended for informational use only and is not for purposes of providing legal advice or association of a lawyer – client relationship.

James W. Mallonee, P.A.
946 Tamiami Trail, #206, Port Charlotte, FL 33953
(941) 206-2223

871 Venetia Bay Blvd., #225, Venice, FL 34285
(941) 207-2223