Northern California Record

Tuesday, September 17, 2019

ALBERTSON & DAVIDSON LLP: Big Fight, Small Estate…Should I Fight For A Small Inheritance?

By Press release submission | Aug 24, 2018


Albertson & Davidson, LLP issued the following announcement on Aug. 23.

Should I Fight My Relatives Over An Estate Even If It’s Worth Very Little?

Probably not. There are two equally powerful issues you must consider when contesting an estate: (1) principal, and (2) money. By principal, I mean fighting for what is right, for what is just in your case. And of course, money simply means the amount you will spend on your Will contest versus the amount your will gain. In almost every Will case, principal and money will clash as some point.

The primary reason people choose to contest an estate in the first place is principal. Especially if you are disinherited from an estate of a parent whom you loved and who you know loved you. And disinheritance can be shocking when it is due to the bad acts of a sibling or outsider who took advantage of your parent during the final stages of the parent’s life.

The burden is on you, the disinherited child, to fight against a bad Will or Trust. Unfortunately, the law presumes that the final document is valid. And the person contesting that document must present enough evidence in court to overturn the document. In some ways, this is a good system because we want properly signed Wills and Trusts to have a presumption of being valid. But when a Will or Trust is obtained through undue influence, or while the decedent lacked capacity, the legal presumption of validity can be an overwhelming burden to the disinherited heirs.

This burden to contest, means the disinherited child must hire lawyers and incur the costs of challenging the Will or Trust in court. Meanwhile, the bad actor has the benefit of controlling the estate money, and using it to fund the fight. That means that every disinherited heir must take into consideration the costs involved in fighting a Trust or Will, and the likelihood of recouping enough money to cover these costs.

The financial side of Trust and Will contests often stops principal in its tracks because it makes little sense to fight for a share in an estate that is worth less than the costs involved to fund the fight. And even in large estate, the costs are not worth incurring if the likelihood of winning is small.

Considering the Cost

The first step is to consider the costs. How much will the Trust or Will contest cost you over the life of the case? Next, you must consider how you will pay for those costs; can you afford to pay out-of-pocket or do you need to retain a lawyer on a contingency basis? And finally, what are your chances of success? There are no guarantees in Trust and Will contest cases, you have to evaluate the risk of loss individually in every case. And there is always room for failure in Trust and Will contest case, so a loss must be considered possible even in the best of cases.

So where does this leave you; should you contest or should you not? That’s a personal question only you can answer. We routinely provide our clients with our view on the risk of loss versus the costs involved, and we can usually tell which cases are likely to provide more than the costs invested, and which will not. But nothing can be certain. So the decision rests solely with you the client. The disinherited heir has to make difficult choices in these cases. Is it worth it to you to lose more money than you will gain? If not, then don’t bother contesting. If you are up for the challenge, then take action and make it as aggressive as possible.

In the end, the best chance you have of satisfying your principal and money goals, is to take your best shot in court. Set an aggressive pace for your case and go for the win! Your inheritance is counting on it.

Original source can be found here.

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