Based in Memphis, Tennessee, the Firm has an active practice with assisting clients with Trust, Will and Conservatorship Litigation in Tennessee state courts. Glassman, Wyatt, Tuttle & Cox, P.C. does not assist its clients with estate planning, drafting wills or forming trusts. Instead, the Firm represents its clients in Probate Court when issues arise concerning wills, trusts and conservatorships.
Memphis, Tennessee Probate Litigation
Glassman, Wyatt, Tuttle & Cox, P.C. is available to defend clients from a will contest, to represent the contestants themselves, or to advocate for the meaning of the will after it has been admitted to probate. Other ways we are asked to help in probate proceedings include:
- Demands for an accounting,
- Breach of fiduciary duty claims against executors and administrators,
- Removal of executors and administrators, and
- Beneficiary, Devisee, Legatee, Heirship determinations.
Tennessee Will Contest
Any person who has an interest in or would have an interest in an estate under the terms of a prior will or intestate succession can generally contest a will. There are various reasons why someone would challenge a loved one’s will. Typically, we see complaints of improper execution, testator incapacity, duress, fraud, or undue influence.
For a will to be valid, a testator, the creator of the will, must have testamentary capacity. Testamentary capacity means, among other things, the testator must have an intelligent consciousness of the nature and effect of the act, a knowledge of the property possessed and an understanding of the disposition to be made.
A person has a set period of time after the will is admitted to probate to challenge the will, so contacting a will contest attorney as soon as possible is important. The timing of initiating a will contest is often a critical factor which should be considered quickly.
Removing an Executor or Personal Representative
Removal of an executor or administrator is typically based on a breach of fiduciary duty or a conflict. Executors and administrators owe the beneficiaries or heirs a high standard of care which usually includes: giving a full accounting, fully disclosing all necessary information, and a duty of loyalty. Beneficiaries can also seek removal of an executor for mismanaging the estate, self dealing, or other conduct that undermines the best interest of the beneficiaries. A lack of cooperation among co-trustees that impairs administration of the trust is another basis for removal.
Determining Heirship
If a relative dies without a will, there are procedures that one can take to determine the proper heirs. Tennessee has a set distribution pattern that dictates who inherits when there is no will, which is known as intestate succession. Typically, distribution begins with a spouse and children, and can include others. At times, distant relatives may be entitled to receive portions of an estate.
Memphis, Tennessee Trust Litigation
Trust litigation comes in many forms because it can occur before or after the settlor’s (the creator of the trust) death. Trusts also come in many different forms, which create many possibilities for a dispute. Trusts are often created to provide for a minor, protect against incompetence, provide tax benefits, seek protection from creditors, privacy reasons, or to prevent a beneficiary from receiving a lump sum of money. Through a trust agreement, the settlor has a say in how and when money is distributed to the beneficiaries.
Trust litigation can arise for many reasons, and there are many types of people that can initiate it. Typically, it begins with a beneficiary who has an issue with the trustee, the terms of the trust agreement, or the creation of the trust altogether.
Trustee Disputes
The basis for attacking a trustee can include breach of fiduciary duty, self-dealing, conflict of interest, enforcement of distribution terms, material violation of the terms of a trust, trustee incapacity, or trustee mismanagement. These claims may allow for the recovery of damages from the trustee, as well as removing the trustee from his/her position with regard to the trust. In addition, Tennessee state law can allow the recovery of fees and expenses for the removal of a trustee if the removal benefits the trust.
Though there are many reasons to pursue claims against a trustee, the trustee is also afforded some protection. A trustee often has a right to use the trust funds for his defense. While the majority of litigation arises out of issues pertaining to the beneficiaries, our Firm is also capable of representing settlors and trustees.
Trust Creation Disputes
Another significant source of trust litigation is the very creation of a trust. To create a valid trust, the settlor must have intended to create a trust. The settlor must also have mental capacity to create a trust, and the settlor must be free of undue influence. Failure to comply with these requirements creates an opportunity for someone to oppose the validity of a trust.
Often a claim will arise when a family member has been cut out of a testamentary trust (a trust created in a will) or a trust created at the same time as a will, and was not provided for elsewhere. A person can also become upset about who was named as a beneficiary seeking to prevent him or her from receiving anything at all.
These are just a few examples of when and how trust disputes might arise. There is a wide variety of situations which lead to a trust litigation. If you believe that there is an error in the creation, maintenance, or management of a trust, please contact our offices to discuss your situation.
Firm Articles on Tennessee Probate Litigation
- Tennessee Will Contests And The Lack Of Testamentary Capacity
- Undue Influence and Confidential Relationships Under Tennessee Law
- Undue Influence and Confidential Relationships Under Tennessee Law
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