Estate Litigation vs. Will Challenges

by Peter Klenk and Amanda DiChello

Because our firm focuses its practice in the areas of wills, trusts, estates, and litigation surround wills, trusts, and estates; potential clients unfamiliar with this unique and somewhat esoteric area of the law often approach us with many questions. One question that often arises is what is the difference between a will challenge or a will contest and estate litigation?

A will challenge or a will contest involves litigation over the validity of a will and is described in further detail at our website, klenklaw.com, in the “Trust, Estate, and Fiduciary Litigation” section.

Estate Litigation is a general term, which encompasses a broad area of actions involving wills, trusts, and decedents’ estate. These actions require the special skills of an attorney who possesses litigation expertise and experience and who is also well versed in trusts and estates matters.

Below are some examples of estate litigation related matters. Our firm has considerable experience and skill in handling these types of matters, among others. For more detailed information on these issues, please visit or website, klenklaw.com.

Compelling Estate and Trust Accountings: Beneficiaries of an estate or trust often have questions or concerns about the administration of the estate or trust, of which they are a beneficiary. One way to obtain information concerning the estate or trust is to request that the executor or trustee produce an accounting of his or her actions. If the trustee or executor refuses to produce an accounting, the beneficiary has the relief of requesting that the court compel the executor or trustee to do so. An accounting is a detailed report, which sets forth every action and transaction, which the fiduciary took in administering the estate or trust. Upon reviewing the accounting, if a beneficiary has further concern with the actions which the trustee or executor took, he or she has the right to object to the accounting and litigate the issue before the court. It is crucial to retain the advice of skilled trusts and estates counsel prior to commencing an action to compel an accounting, or prior to objecting to an accounting, as there are a number of strategic and procedural steps, which must be followed and considered.

Surcharge Actions Against a Trustee or Executor: As previously discussed, often a beneficiary may not agree with the actions or transactions of a trustee or executor, especially if the trustee or executor’s actions caused harm or loss to the estate or trust. When this is the case, the beneficiary has the relief of commencing a surcharge action against the trustee or executor. A surcharge action is essentially a lawsuit against the executor or trustee for purposes of recovering loss which the executor or trustee caused to the estate or trust as a result of a breach of his or her fiduciary duties. Surcharge actions should not be taken lightly and it is highly important when considering a surcharge action that you retain the advice of experienced trusts and estates litigation counsel who can analyze the situation and provide appropriate advice before commencing such an action.

Defending Surcharge Actions Against a Trustee or Executor: An executor or trustee has a right to retain counsel to defend him or her against a surcharge action. Simply because you are faced with a surcharge action, does not necessarily mean that you have done something wrong or improper in the eyes of the law. If faced with a surcharge action, it is important to retain skilled and experienced counsel to advise you of the law and the means of defending yourself against the litigation.

Removal of an Executor or Trustee: In most jurisdictions, the court has the authority to remove a trustee or an executor upon the request of a beneficiary of a trust or estate, or even upon its own action. The burden of proof necessary to seek the removal of a trustee or executor is a high standard and can be difficult to meet, which is why it is important to obtain the advice of experience trusts and estates counsel before commencing such an action. Generally, reasons for removal include, but are not limited to, breach of fiduciary duty, conflict of interest, fraud, misconduct, and inability to perform the duties of trustee or executor.

Defending an Executor or Trustee Against a Removal Action: An Executor or Trustee has a right to retain counsel to defend him or her against a removal action. Simply because you are faced with a removal action, does not necessarily mean that you have done something wrong or improper in the eyes of the law or that you will be removed. If faced with a removal action, it is important to retain skilled and experienced counsel to advise you of the law and the means of defending yourself in the litigation.

Collection of Assets on Behalf of an Executor or Trustee: For various reasons, an executor or trustee may have particular difficulty in collecting an asset that rightfully belongs to the trust or the estate. In some cases, the person or entity holding the asset may refuse to release the asset to the executor or administrator. For example, the decedent’s friend may have taken jewelry or tangible personal property belonging to the decedent, or an insurance company may refuse to pay out the proceeds of a life insurance policy because the insured committed suicide. In such situations, the executor or trustee has the right to commence legal action on behalf of the estate or trust to seek the court’s intervention in compelling the release of the asset to the trustee or executor. These types of situations require the skill of an attorney who is familiar with both trusts and estates and is experienced in litigation to swiftly assert the trustee or executor’s claims.

Creditor Claims Against a Decedent and His or Her Estate: It is quite typical for a decedent to die owing money to someone or something. It is the job of the executor or trustee to take certain actions to ascertain the various creditors of the decedent, to analyze those claims and their legitimacy, and to pay such claims. As a creditor of a decedent, it is important to preserve your rights to collect from the decedent’s estate and there are special procedures and steps that a creditor must take to do so. If the executor or trustee disputes a creditor’s claim, the claim must be litigated before the court and evidence must be produced to support the claim. Whether you are a creditor wishing to pursue a claim or an executor or trustee defending the estate against a creditor’s claim, it is crucial to retain the advice of skilled trusts and estates counsel who understands these issues.

Contested Guardianship Matters: When an individual is unable to continue managing his or her own finances or personal affairs for various reasons, close family or friends may consider a guardianship action seeking to declare the individual an incapacitated person and seeking the appointment of a responsible person or corporate entity to serve as guardian of the alleged incapacitated person’s estate and/or person. In some cases those close to or related to the incapacitated person, or even the alleged incapacitated person himself or herself, may disagree as to whether the alleged incapacitated person is in fact incapacitated. In other cases those close to or related to the incapacitated person may disagree as to who or what entity is best fit to serve as guardian. In both examples, the guardianship matter is considered a contested matter and becomes much more complicated. When facing a contested guardianship matter, it is important to retain skilled litigation counsel familiar with the law in this particular area to assert your rights and position.

Will and Trust Interpretation Disputes: Disputes and uncertainties about the meaning of a will or trust document can often arise. Disputes concerning the construction of a will or trust and the meaning of the terms of the document frequently become contentious and litigious. For this reason, it is important to seek the advice of counsel experienced in the area of trusts and estates who can interpret the document and advise you of the law concerning the interpretation of the document.

Wrongful Death Actions: Although technically not an estate litigation matter, a wrongful death action often starts in the estate area of the law. Sometimes the only reason a decedent’s estate is opened is for purposes of pursuing a wrongful death action on behalf of the deceased. The process of opening a decedent’s estate solely for this purpose is known as “administration ad prosequendum”. An attorney who focuses his or her practice in trusts and estates will be able to file the necessary paperwork to open an estate so that separate counsel can commence a wrongful death action on behalf of the decedent’s estate.