Law Talk with the Flock

How Do You Handle Probate Litigation As An Executor Or Administrator?

March 11, 2020 Jeana Goosmann, Matthew Abel Season 1 Episode 4
Law Talk with the Flock
How Do You Handle Probate Litigation As An Executor Or Administrator?
Chapters
Law Talk with the Flock
How Do You Handle Probate Litigation As An Executor Or Administrator?
Mar 11, 2020 Season 1 Episode 4
Jeana Goosmann, Matthew Abel

Goosmann Law Firm Sioux Falls Probate Litigation Attorney Matt Abel and Host Jeana Goosmann discuss probate litigation - what to do when it happens and how to avoid it. During this episode you will learn: 

  1. What is probate litigation?
  2. What does a Personal Representative or Executor do?
  3. What to do during probate.
  4. How to prevent probate.

Learn more about Goosmann’s estate planning practice HERE.

Become a flock fan and subscribe to our Podcast for weekly episodes! Learn more at www.goosmannlaw.com.

DISCLAIMER: The information in this podcast episode “episode” is provided for general informational purposes only and may not reflect the current law in your jurisdiction. By listening to our episode, you understand that there is no attorney client relationship between you and the Goosmann Law Firm “GLF” attorneys and podcast publisher. No information contained in this episode should be construed as legal advice from GLF or the individual author, hosts, or guests, nor is it intended to be a substitute for legal counsel on any subject matter. Please read our full Podcast Disclaimer.

Show Notes Transcript

Goosmann Law Firm Sioux Falls Probate Litigation Attorney Matt Abel and Host Jeana Goosmann discuss probate litigation - what to do when it happens and how to avoid it. During this episode you will learn: 

  1. What is probate litigation?
  2. What does a Personal Representative or Executor do?
  3. What to do during probate.
  4. How to prevent probate.

Learn more about Goosmann’s estate planning practice HERE.

Become a flock fan and subscribe to our Podcast for weekly episodes! Learn more at www.goosmannlaw.com.

DISCLAIMER: The information in this podcast episode “episode” is provided for general informational purposes only and may not reflect the current law in your jurisdiction. By listening to our episode, you understand that there is no attorney client relationship between you and the Goosmann Law Firm “GLF” attorneys and podcast publisher. No information contained in this episode should be construed as legal advice from GLF or the individual author, hosts, or guests, nor is it intended to be a substitute for legal counsel on any subject matter. Please read our full Podcast Disclaimer.

Speaker 1:

Do complex legal issues. Hold you back. Let's get energized and bring clarity to your top legal questions. This is law talk with the flock by Goosmann law firm.

Jeana Goosmann:

Hello, I'm your host, Jeana Goosmann , CEO and managing partner of the Goosmann law firm, author and business owner. And I'm here to help navigate you through the law, your business and life as a leader. Welcome Matt. I have Matt Abel with me here today. He is an estate and probate and trust trial attorney or litigator as they're sometimes called welcome Matt.

Matt Abel:

Thank you for having me.

Jeana Goosmann:

Excited for you to be on the podcast. So Matt Abel is part of the Goosmann law firm and like I said, he does a lot of this litigation or trial work having to do with trusts and probates and tell me really what is a probate? Let's get that out of the way first.

Matt Abel:

So a probate is a fancy word for saying what happens when somebody dies with or without a will. And then we have to go to a court and determine how those assets are going to be distributed to either their spouse or their kids or whomever they've determined those assets should be distributed to.

Jeana Goosmann:

So it's the court process after somebody dies.

Matt Abel:

It is.

Jeana Goosmann:

That's what a probate is.

Matt Abel:

That's something that's very simplest terms. Yes.

Jeana Goosmann:

Okay, and then when somebody dies and they have a trust, they don't have to go through that process necessarily. Do they?

Matt Abel:

Correct. If the trust is properly funded, meaning it's properly set up, then yes, we can avoid probate, completely. Saving in some cases, millions of dollars in some cases, tens of thousands of dollars depending on how much assets the individual has.

Jeana Goosmann:

And at Gossmann law firm, we have this group called trust law council that helps people form those trusts and make sure they're properly funded. But what we're going to talk about today is more if somebody didn't do great planning or if they have really contentious beneficiaries, what happens when they fight?

Matt Abel:

That never happens.

Jeana Goosmann:

People never fight.

Matt Abel:

No, no.

Jeana Goosmann:

Especially over money.

Matt Abel:

Absolutely not. Especially after their parents die.

Jeana Goosmann:

There aren't any movies about this or anything either?

Matt Abel:

No, not that I'm aware of.

Jeana Goosmann:

There's a whole reason that you have a career. And so tell me a little bit about what does that mean when people have a dispute after somebody passed away and there's some fighting going on over these assets?

Matt Abel:

Far too common. You know, it keeps me employed is that the beneficiaries or the kids or whomever it may be believe that they are entitled to the assets of somebody who's passed away and disagree with what has happened with those assets. So then they come to a person like me and we look at a number of different things including whether there was a will, whether there was a trust or not. And then depending on how that looks, that's how we decide which route we're going to take. So, you know if there is a will, then we can challenge that will and a certain circumstances on different bases such as undue influence, mistake, fraud, things of that nature. If there's a trust, you can do the exact same thing. A lot of people come and say, "Hey, you know, you were living with mom or dad, you took mom or dad to the lawyers office and told that lawyer to cut all of us out of the will. And so we want our fair share." So that's the general gist of an estate contest, a will contest afterwards. Sometimes people say there's multiple wills . Then maybe they say mom did one in 2009 and now she did another one in 2014 and they're completely different. So which one's gonna control the distribution of our assets?

Jeana Goosmann:

So people are trying to throw out that later will so that the prior one is in effect and probably because the prior one they had more that they were going to receive under the prior. Well , now what about if they have a trust? And I know South Dakota in particular has a lot of privacy around those trusts. Are people still able to contest them as easily?

Matt Abel:

Trusts are a different animal. During life, the beneficiaries of a revokable trust are not entitled to know about the revokable trust. An irrevocable trust, which would mean a trust that can't be revoked during the person who created it's lifetime. They do get to know about that trust during life, but there are a lot of protections and that's a little bit more complicated. Most people are dealing with revokable trusts that once that person passed away, they get to find out, Hey, there's a trust in play. And then all of that, one of the beauties of South Dakota is that all of that is confidential. The proceedings relating to challenging a trust are confidential, so you're not airing your dirty laundry, so to speak in the public sphere like you would in a probate case, which is another advantage of having a trust.

Jeana Goosmann:

Got it. So the probate case, they just had a, will it can be a very public family fight after somebody passes away. But if they have a trust and then there's a litigation or trial work after that that's all private because doesn't the court put those documents under seal?

Matt Abel:

Automatically yes. As soon as that case is filed, those documents are under seal. So nobody will know about what's going on. And oftentimes those are the cases that are more salacious, because there's usually the people that are using trust usually have a larger sum of assets. So we're talking a l ittle about a little bit money. There's a little bit more high stakes. So S outh Dakota's decided, you know, we want to be friendly to people that are creating t rust. We're g onna keep that out of the public sphere.

Jeana Goosmann:

I want to get a few more things of the jargon out of the way here to talk to us about personal representatives and executors.

Matt Abel:

Sure. And those terms are really synonymous. You'll see those terms used in different wills depending on who's drafting them. All that those terms mean is the person that's charged or that's been decided by the deceased to administer their estate after they've passed away they're in charge of setting up a probate if it's necessary or just distributing the assets according to the will, if a probate isn't necessary.

Jeana Goosmann:

And what happens, what's their role? If there is fighting and there's trial work to be done?

Matt Abel:

It can be a number of different things. Primarily it's usually to be defending the will and that's because the beneficiaries or the people that think they should be beneficiaries are mad at the personal representative because they're the ones that usually take the most under those wills. So they have an obligation to defend whatever will they believe to be the last Will and Testament of the person who's passed away.

Jeana Goosmann:

And how do they go about defending the will?

Matt Abel:

They come to a person like me and I walk them through the process and if a case has already been started, then we can file our own documents with the court saying this is why we believe the will that was the last will for instance, is the will that should be entitled to be probated. And that's the will that should determine how the assets should be distributed.

Jeana Goosmann:

So if you're named a personal representative or an executor or even a trustee, really your first step is to hire counsel.

Matt Abel:

Absolutely. Absolutely. Unless you're the only sibling, unless you're the only person that you believe is going to be receiving anything ever, which is rare, then you, I mean, you most likely don't need that, but cause it's all gonna go to you anyway. But if there's one or more people involved, then yeah, you're going to want to talk to a lawyer at least to figure out what you should do.

Jeana Goosmann:

How to go about doing it. So what, what can you do to try and prevent this fighting if people don't want to have this happen after they pass away? What are some of the things they could think about up front?

Matt Abel:

Absolutely. And this is one of the things that our TLC worked so hard to counsel our clients with is it's not something that you can stop, but it's something that you can definitely help to prevent. And that's through open lines of communication with the people that are going to be beneficiaries, that are going to be executors, that are going to be trustees and tell them exactly what their roles are, exactly what they're going to receive during life. So that that mom and dad explain, Hey, this is why we're doing this and this is why you're in this role versus this other person. Have that all well-documented through which an attorney would do through our TLC. And then we hope to avoid a will contest afterwards because everybody's on the same page and was at the meeting and understood that this is exactly what we were gonna do after mom and dad died.

Jeana Goosmann:

So, and some of the ways that people contest that, let's talk about them a little bit more. I know if somebody has dementia, that's a common one that we see, right?

Matt Abel:

Absolutely. So that can fall into a couple of different categories that can fall into a category that we call lack of testamentary capacity. And that's a fancy way for saying that somebody didn't have the mental ability to be able to execute documents such as a will or a contract for deed oftentimes involving foreign land, especially in South Dakota or a warranty deed for a home or anything like that. So that's one of the ways if they have dementia or Alzheimer's or something like that during the last part of their lives.

Jeana Goosmann:

And they ran in and they made a change to their will, and we can show that they had Alzheimer's or dementia, that's one way that that might get thrown out.

Matt Abel:

Absolutely. And it also ties in with what's called undue influence, which basically means that one person or two people had the ability to influence improperly the person who was making the decisions about how they wanted the end of their assets to be distributed at the end of their life

Jeana Goosmann:

and we were kind of on both sides, don't, we will defend the will and then we'll also work on the other side where we're kind of try and contest it.

Matt Abel:

Absolutely. I was just going through a list of my clients and it's about a 50 50 split of beneficiary litigation and representing the personal representatives.

Jeana Goosmann:

And on the beneficiary side where we're trying to go in and say that this person should be entitled to more because those things really do happen too, don't they, Matt , where somebody does have undue influence over somebody at the end of their life. Elder abuse is a real thing these days as well and how do you go about proving some of those different issues?

Matt Abel:

Absolutely. Elder abuse is both just a legal term of art in the sense that we're saying, yeah, you did some things that were inappropriate with mom or dad near the end of their life, but it also can be a criminal offense. So what one thing that I often do if I'm representing the personal representative, and that's one of the charges is we want to make sure that we get that cleared up and if represented a beneficiary that we think that's happened. Sometimes we have to involve law enforcement and I've done that before and had great results getting that money brought back into the estate because one of the kids took advantage of mom or dad through what was called financial elder abuse. So it's a lot of investigation at the initial stages to make sure that we've got our ducks in a row so to speak. But after that there's just the probate code, the laws that govern how all of this works, lay out a pretty clear path about how you work towards settling in the state.

Jeana Goosmann:

Interesting. There's a lot going on in these family dynamics too, and thank you so much for coming on today to help explain some of these different terms and how this process and procedure works.

Matt Abel:

Absolutely. Thanks for having me.

Jeana Goosmann:

Go make it worth it.

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Thanks for joining us for law talk with the flock by Goosmann law firm. We hope you feel energized and ready to soar. Past your goals. Become a flock fan and subscribe to our podcast for weekly episodes. Learn more at goosmannlaw . com.