It is important to do your homework when looking for Alabama estate lawyers. These types of cases are not as exciting and some other areas of law, so some firms send people with little experience to represent clients. This can be an estate planner or just a new lawyer who has not dealt with a lot of cases. A good law firm will send a “real lawyer” to work with your case. Make sure you will have an attorney that is proficient and experienced in estate and trust cases.
Estate or probate cases are held to divide up the estate of someone who has died. Normally this is just a formality that makes the wishes of the deceased person legal.
If there is a lot of money involved, there may be conflicts. When conflicts arise about the estate, a litigation attorney gets involved to represent clients. One way to avoid this is to have a solid plan and will in place. Even then someone may object and file a lawsuit, and you will need an estate litigation attorney.
Why suits are filed
There are a few ways a will can be contested, and this is the most common case taken to probate court. There are also suits when there is no will.
Here are some reasons wills are contested:
- A lack of capacity, alleging that the testator did not have mental capacity when making out or signing the will that was made.
- A person may also sue alleging undue influence over the person who made the will. This charges that the person was coerced or compelled to write the will in a certain way. One child could convince an elderly parent to write other children out of the will, for example.
- A suit may also allege the will was not made properly. The will must be signed by the testator and signed by two unrelated parties as witnesses. A person could allege this did not happen or did not happen properly.
- A cause of action can also be brought against the administrator of the will for breach of fiduciary duty. The person administering the will must be honest, loyal, and do things accurately.
- The elective share is another reason, though it is not as common. Some states have rules giving a certain share of the estate to the surviving spouse.
- Forged documents are another reason lawsuits are filed. A person may challenge whether signatures are legitimate, but the burden of proof is on the person making the charge.
After the suit is filed
Litigation attorneys may represent either side in a lawsuit. Whether you are the administrator, or the person making the challenge, it is important to have someone helping you that knows the law.
When a case is filed, investigation and research is started. You will be interviewed in-depth to get as much information as possible. We will also need any paperwork involved or related to the case. You have told the short version, and at this stage, you tell the long version. A good attorney will tell you at this stage whether you are likely to succeed.
Next, papers are filed in probate court. The person filing the suit is the petitioner. The person might ask for a conservator to be appointed, or that a trustee be removed. This makes official the charges, and you ask for the damages you feel entitled to.
Once the papers are filed, the person being sued may respond. This leads to the discovery phase where evidence is sought to bolster the case. In this phase you also learn what the other side is alleging and a lot of what they will be presenting.
Very often the judge will send the case to mediation. Here negotiations are held. Both sides are kept separate, and mediators go back and forth with negotiations. The mediators will not make a final decision. Each side will get something, and each side will lose something. If you don’t feel you got a good deal, you may consider going to trial. You must weigh this against the cost of litigation, which may be high.
If you proceed, before the trial begins expert witness deposition begins. Various experts may be hired to write opinions, and the other side will likely do the same with different experts. These testimonies are written and filed to the court. This may cost even more than your attorney because a lot of preparation goes into making the deposition.
The next official stage would be the trial itself. Cases are heard by a judge. Sometimes a judge will move on to another case, and you will have to start over with a new judge.
By this time you will have spent a lot of money. You may appeal if the judge does not rule in your favor. Keep in mind however that appeals rarely succeed.
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