Estate Litigation - Part 1 - Will Contest

For most states, a majority of probate administration issues are handled by the Register of Wills or other administrative staff rather than a judge. But as in life, things are not always that easy, and judges sometimes are required to adjudicate issues that arise during probate administration. Sometimes, the issue might simply require judicial direction in solving a matter while other times it could turn into a full-blown litigation.

The most common type of estate litigation that occurs is called a will contest. After the will has been submitted to probate a party in interest objects by either, contesting the validity of the will or trying to probate another will that the party in interest believes is the correct last will and testament of the decedent.

Most will contests revolve around the following issues:

• The decedent lacked the requisite mental capacity to make a will,
• The will did not meet the necessary standards for properly making a valid will,
• A person in a position of trust and confidence with the decedent used that position to unduly influence the decedent regarding provisions of the will,
• A person uses duress, or other means to force the decedent to include provisions in the will the decedent might not have normally made, and.
• The will is a result of fraud.

Most states provide that a party in interest has a certain timeframe to challenge a will. In Virginia and D.C. , you have 6 months after the entry of the order of probate to file an appeal with the clerk of the court. Maryland also provides 6 months except in the case of an after discovered will, you have 3 months from the close of administration to challenge the will. The matter will be placed on the court docket for a judicial hearing to determine if a will is valid. Just like in a normal court proceeding, evidence will be presented and the court will determine which party is right.

Next time I will get into other types of estate litigation.

Basics of Estate Planning: What is an Account Used for in Probate?

Last time, I discussed the importance of the probate inventory. This month I will discuss how the information gathered to create the inventory is used to create a probate account and what the account is used for in probate.

An account is essentially the balance sheet of the estate. It is much like a checkbook register that details money going in and money going out. Depending on the length of probate, a personal representative may file multiple accounts during the administration. The first account is the starting point and uses the assets, and their values, derived from the initial inventory. The first account tallies up the financial events that occur during the administration over a certain time period. The account lists all of the receipts, gains on sales and adjustments against distributions for debts and administration expenses, disbursements to beneficiaries and heirs, losses on sales and ending assets, etc. Every figure must be supported by documentation listing each transactions, asset or adjustment. For example, a distribution to a beneficiary can be supported by a canceled check or the value of an asset from a bank or brokerage statement.

However, like other estate filings, whether the estate is supervised or unsupervised determines the filing time and complexity of the account filing. For example in D.C., a supervised estate, the first account must be filed with the Court no later than one year and one day after the date of first publication of the Notice of Appointment. Many times, the first account will also be the final account and the estate administration is closed. But, if needed, in a supervised estate, subsequent accounts are due every nine months from the date of the filing of the last account until distribution of the estate is completed. Virginia and Maryland have similar timing rules for when an account is required to be filed.

An account typically provides the following information:

• All assets of the decedent that is controlled by the personal representative and the asset's values, and any property of the decedent not collected;
• All property sold or otherwise disposed of;
• All disbursements made;
• All gains and losses realized
• All investments made and all changes of investment, with a description of each such transaction; and
• A schedule of distributions.

An account tells you the basic financial story that transpires of a period of time during probate administration. A good account should be well organized. It will allow an interested person reviewing the account to understand the financial picture of the estate. A bad account will be disorganized and lack supporting documentation. A bad account will likely raise issues and concerns from the interested persons. It could cause the personal representative to be hauled before a judge to explain their actions. You don't want to be that personal representative.

Estate of the Month: Harper Lee's Probate Administration Raises Questions

If you are like me, at some point in your high school academic career, you spent time reading the novel “To Kill a Mockingbird” by Harper Lee. Lee was a renowned recluse and it appears that her estate will be administered in a similar opaque manner. From an outside perspective, this raises some questions regarding her estate given several controversies that arose during the last few years of Lee’s life.

Lee was famous for writing “To Kill a Mockingbird” in 1960. It is the quintessential American novel. It was estimated, based off of paperwork from an old lawsuit, that Lee earned nearly $1.7 million during a six-month period in 2009. That works out to about $9,000 a day. The plot and characters are loosely based on the author's observations of her family and neighbors (including Truman Capote), as well as on an event that occurred near her hometown when she was 10 years old. For over 50 years, it was Lee’s only published work available.

Leedied on February 19th of this year. She was never married and had no children. Her last remaining sibling, a sister, died in 2014. Lee was survived by several nieces and nephews. However, it was the last several years of Lee’s life that raise some concerns about her actions.

The first and foremost concern, was the release of the novel “Go Set a Watchman” in 2015. It had been 55 years since “To Kill a Mockingbird” and it was reported back in 2011 that Lee had told friends why she never wrote again stating “Two reasons: one, I wouldn't go through the pressure and publicity I went through with To Kill a Mockingbird for any amount of money. Second, I have said what I wanted to say, and I will not say it again." It is believed by many Watchman was really a first draft of Mockingbird. Even if Watchman was technically written prior to Lee writing Mockingbird,” it is hard to consolidate the statement made above with her actions taken in 2015. Lee attempted to avoid any notoriety, so it is rather curious that she would decide to release a new novel shortly before her death.

A number of other people that were close to Lee stated the release of Watchman was very unlike Lee. Many noted that the publication of the novel (announced by her attorney and agent Tanja Carter) was only 2.5 months after the death of Lee's sister Alice. Alice had been recognized by many to be Lee's "gatekeeper, advisor and protector." The announcement was so startling that even the State of Alabama investigated into whether Lee was competent enough to consent to the publishing of Go Set a Watchman. The investigation found that the claims of coercion and elder abuse were unfounded.

Other concerns that arose toward the end of Lee's life include lawsuits against various entities that were allegedly co-opting her likeness and works and changing literary agents. There is also somewhat ironical fear that additional unpublished or unfinished literary works will be found in the coming months and released by those in charge of the Lee estate. As a note, Lee's personal representative is Tanja Carter - the lawyer that released the news about the publication of Watchman and Lee's last literary agent before she died.ⁱ

As someone that has seen enough estate squabbles to know that transparency is the best medicine to ensure everything is done correctly, the most concerning aspect of Lee's estate was the recent decision by the Alabama Probate Court sealing Lee's will from public access. The court sealed access to Lee's will based on a petition from Carter. The Alabama Probate Judge sealed Lee's administration because there was a threat of public intrusion and harassment for Lee's heirs. There just seems to be something not right with what is going on. The Court's response to Carter's petition seems like a cheap throw away answer. In fact, it is just the good old boy (or girl in this case) of taking care of their own. According to reports the Judge that sealed Lee's will had never sealed access to a will before and did it as a favor to Carter because they were friends. That smells if you ask me. Compare that to Joe Paterno's heirs requested his estate administration be sealed and a Pennsylvania Court rejected a similar argument.

If Lee wanted her estate to be administered in privacy she should have created a trust. Her father (and the alleged basis for Atticus Fitch in Mockingbird) and sister were both practicing lawyers. She likely understood the need for a trust. But, she was reclusive by nature, and if she decided to not create a trust, to me, that demonstrated more likely than not that she wanted her estate administration out in the open. It will be interesting to see if a newspaper challenges the sealing of her estate administration to access the records.

ⁱIt also interesting to note that almost immediately after Lee died that the Lee Estate, meaning Carter, made the decision that it will no longer allow publication of the inexpensive paperback edition that was popular with schools increasing the costs of the book almost 75% from $8.99 to $14.99.