Areas of Practice
Trust and Probate Litigation
The services we offer at Crosby & Crosby in the area of trust and probate litigation involve the following:
Trust litigation is the attack on, and the defense of, trust instruments. Attacks can take a variety of forms such as proceedings to:
- (a) challenge the validity of trusts;
- (b) interpret trust provisions;
- (c) set aside conveyances to trusts;
- (d) impose constructive trusts;
- (e) include or exclude beneficiaries;
- (f) request a remedy for a trustee’s breach of a duty to a beneficiary;
- (g) remove a trustee; and
- (h) demand an accounting
Crosby & Crosby represents both beneficiaries and trustees.
Beneficiaries sometimes need advice and counsel to assert their rights or to remedy wrongs committed by other beneficiaries or trustees. Disputes can be resolved by negotiation, mediation, or court order. All of these proceedings require experienced and thoughtful guidance.
Trustees need advice and counsel regarding their fiduciary duties (for example, their duties of loyalty, impartiality, disclosure, to enforce or defend claims, to avoid conflicts of interest, and to avoid self-dealing). Trustees also need advice regarding their standard of care (for example, the “Prudent Trustee Rule” and the “Prudent Investor Rule”). Trustees occasionally need representation to defend their actions.
The most common contested probate proceedings are:
- (a) will contests;
- (b) challenges to the appointment of a personal representative (i.e., an executor or an administrator);
- (c) disputes over title to real and personal property;
- (d) proceedings to determine entitlement to estate distribution;
- (e) disputes concerning bonds;
- (f) disagreements among family members;
- (g) claims against third parties;
- (h) claims by third parties against the estate; and
- (i) surcharges against the personal representative for breach of fiduciary duty.
Probate litigation can take place in a variety of forms and courts. Issues of jurisdiction, venue, standing, and notice are always present. Most cases have strong emotional issues, and some have complicated accounting issues. Alternative dispute resolution (e.g., negotiation directly by the parties, negotiation through counsel, mediation, and arbitration) must always be considered. Crosby & Crosby is equipped to handle these issues and guide the client through these processes.
The Role of Crosby & Crosby
Will contests and trust contests are based on the grounds of lack of testamentary capacity, undue influence, fraud, duress, mistake, and/or the disqualification of persons who drafted the instrument. Crosby & Crosby has experience in the discovery of facts, use of expert witnesses, and trial of cases involving these claims. The attorneys at Crosby & Crosby possess over 50 years of experience and a wide range of skills. We are knowledgeable about the substantive areas of law involved in trust and probate litigation and the procedures unique to the trial of these matters.