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Estate litigation on the rise

Dealing with probate issues after the death of a loved one can be a difficult time for many families and individuals. However, this may be exacerbated when the situation is complicated by disputes over inheritances and other estate matters. A number of reasons can spawn estate litigation to deal with challenges and questions that emerge after a person's death.

Experts speculate that there may be an overall increase in estate litigation in 2018; as more people in an aging society pass away, there are more potential opportunities for issues to arise. In addition, major generational wealth transfer is a significant factor because battles over large estates are more likely to give rise to litigation. There have also been significant changes in trust law over the past 10 years as many states pass trust decanting statutes or adopt the Uniform Trust Code as part of state law.

Some estate planning attorneys attempt to deal with the threat of estate litigation by including clauses for mandatory arbitration in wills and trusts. This means that a beneficiary must consent to binding arbitration in order to receive their will bequest. Others include clauses that forfeit a gift in the event of any challenge to a will or trust. However, these clauses can be problematic in and of themselves as they might inhibit challenges against real fiduciary misconduct and inheritance theft. In addition, the clauses' legality can become a factor in estate litigation that arises. It is unclear whether these clauses will be considered legal under various states' laws.

For many people, inheritance theft can be a real concern, especially after receiving shocking or surprising news after a will is read. A probate litigation attorney may be able to work with beneficiaries who are troubled by the outcome of an estate. It may be possible to file a challenge to a will or trust that was executed improperly or under undue influence.

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