Raleigh Estate Litigation Attorney
Whether you are fighting to protect an elderly loved one, contesting a will, or trying to put a stop to trust fraud, you need a Raleigh estate litigation attorney who has extensive experience in this complex area of law.
“Andrew assisted us with formulating an estate plan. My husband had recently retired and we felt it was time to create a plan for the future. I know that the disposition of our assets is clearly defined. Our plan is comprehensive and well designed. Andrew helped us make choices that will be relevant in the future.”– Anonymous, Estate Planning
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At the Brady Cobin Law Group, PLLC, our respected trial team has more than 35 years of experience helping people litigate their estate law disputes. Our law firm focuses exclusively on estate and elder law, so we have the resources and the manpower to devote to these challenging cases.
Some of the common types of estate litigation cases our firm handles include:
- Financial elder abuse
- Guardianships and incompetency issues
- Trust litigation stemming from fraud, unclear beneficiaries, and interpretation problems
- Will caveat actions, or contested wills
Whether your case requires careful negotiation or aggressive litigation, our attorneys have the skills and the dedication to handle it. Contact us today to schedule a consultation so we can sit down and discuss the problem you are facing.
Fighting Financial Elder Abuse with Estate Litigation
Financial elder abuse occurs when someone with a power of attorney, or another position of trust, abuses their position. It’s an all too common problem. The result is financial harm to an elderly person who may be scared, lonely, or may not be able to understand what’s going on. Anyone can engage in this type of abuse, including family members, friends, and fiduciaries.
There is no one sign that financial elder abuse is occurring. However, some of the signs of financial abuse may include:
- Questionable withdrawals from accounts
- Inappropriate use of a credit card
- Inability of an elder to explain or understand why certain transactions have happened
- Missing money or property
- Unexpected changes in property ownership, changes in wills, and transfers of title
- Any other inappropriate transactions
Elderly people are often the target of this kind of abuse because they have gathered a lifetime of resources and may suffer from diminished capacity for decision making. They may also be socially isolated and unable to turn to others for advice. This makes them an attractive target for those who would abuse their trust. Sadly, elderly people are often financially abused by family members and those they trust the most.
If an elderly loved one exhibits the following characteristics, he or she may be at risk for financial abuse:
- Deterioration of mental or physical capacity
- Mental illness, whether diagnosed or not
- Loneliness due to the loss of friends, a spouse, or family members
- Geographical isolation from family members and trusted friends
- Dependent family members with substance problems
- Isolation and lack of social outlets
In North Carolina, elders are protected from abuse and financial exploitation by law. The law covers people who are 65 years and older, as well as physically or mentally incapacitated adults. Abuse must be reported, and when it is, law enforcement will investigate. If they find financial exploitation, they may charge the abuser with a felony and pursue means for recovering the funds.
If you suspect financial abuse is occurring, or has already taken place, there are options for litigation. Investigation can uncover the truth, and litigation can help the victim or the estate recover the money that was stolen. It’s never easy to admit that abuse is occurring, but if you suspect it is, don’t wait to act. Talk with a financial elder abuse attorney now about protecting your loved one.
Guardianships & Incompetency in North Carolina
A guardianship is a legal appointment in which someone is trusted to manage the well-being and affairs of another person. Guardianships allow caretakers to step in and make decisions about the health and finances of another person. These decisions can have enormous consequences, so this is a great responsibility.
If a parent, spouse, or other loved one can no longer care for themselves, guardianship may be an option. Guardianship may also be appropriate if dealing with a minor who cannot manage his or her own affairs.
In North Carolina, there are three types of guardianships:
- Guardian of the person, which focuses on the health and well-being of the person
- Guardian of the estate, which focuses on the finances
- General guardian, which handles both finances and issues of well-being
The type of guardianship, and any limits on it, will need to be approved by a court. If the circumstances of a guardianship change, a court may modify it as needed. If you need to modify a guardianship, a lawyer can help you understand what changes need to happen and what the process is for accomplishing them.
In some cases, you may need to have someone declared incompetent before a guardian can be appointed. For example, elderly people may suffer from degenerative mental conditions that can impair their ability to function on their own. A court will also determine whether a person is to be declared incompetent. When a person is declared incompetent, it means that he or she is no longer able to make key decisions and a guardian needs to be appointed.
A court can declare someone incompetent when they are unable to manage important matters or when they cannot communicate their decisions. The court will look at the person’s capacity for communication, decision-making, and the cause for their diminished capacity. Serious illness, age, or accident can lead to circumstances where a person needs to be declared incompetent. Having someone declared incompetent is a complex determination by the court. If you need to declare someone incompetent, make sure you consult with an attorney about the process and how to move forward.
Trusts are often intended to help beneficiaries avoid problems. Unfortunately, this isn’t always the case. Trusts may be created or modified as the result of diminished capacity, undue influence, or duress. In other cases, the trustee (the person administering a trust) may misuse trust resources for their own benefit. Some trusts may suffer from unclear beneficiaries or from vague terms that are subject to disagreement.
Some of the common litigated issues involving trusts are:
- Trusts that are formed or modified as the result of fraud, undue influence, or duress. In some cases, the person who created the trust did not have the capacity to do so. When someone lacks the requisite capacity to form or modify a trust, beneficiaries and others may be able to challenge the trust’s validity.
- Trustee fraud, waste, or self-dealing. Trustees owe beneficiaries duties to care for the trust assets. Trustees are expected to prudently and properly manage trust assets for the beneficiaries. However, trustees are human and there have been many incidents of trustees violating their duties. They may appropriate trust assets for themselves, they may mismanage the trust assets, or they may fail to distribute the trust assets correctly. In these cases, beneficiaries may bring suit.
Keep in mind that in many cases, trustees may use funds from the trust to defend themselves against accusations. This can drain the resources of a trust, and if the trustee has not breached their duties, then the overall amount of the trust is reduced. Before bringing litigation for trustee malfeasances, it’s important to investigate the claims and build as strong a case as possible.
- Problems determining beneficiaries. When you’re creating a trust, it’s important to be as clear as possible. Sometimes though, the beneficiaries of a trust may not be clear. For example, if someone names an open class of beneficiaries such as friends, the trust may fail. In these cases, there are no clear definitions of who would be included or excluded. In cases where the beneficiaries are not sufficiently clear, the trust may be invalidated.
- Problems of interpretation. Trusts may have multiple beneficiaries, and they don’t always hold the same view on the terms or distributions of a trust. Some beneficiaries may feel that other beneficiaries should be removed, or that assets should be distributed differently. Beneficiaries may have to litigate to get a final determination on who is owed what, and how the trust assets should be managed.
If you are involved with a trust and have questions, our experienced Raleigh estate litigation attorneys can help you investigate and answer them. In some cases, problems can be negotiated and solved out of court. In others, litigation may be necessary to resolve the dispute.
Will Caveat Actions
Will caveat actions, also known as will contests, are actions about the validity of wills. In most cases, wills make it through probate without any problems. However, there are cases where wills are contested. They can be complex and emotional cases that put strain on everyone involved. In cases where parties suspect fraud or incapacity, they may challenge the will.
People are legally allowed to change their wills as they see fit. However, the changes may seem suspicious at times. The addition of a new person who is a stranger or the removal of a child from the will may be grounds for further investigation and litigation. When contesting a will, it’s important to look at the following elements:
- Age and capacity of the will maker. The person who wrote the will has to meet certain requirements in North Carolina. They must be over 18, and they must be of sound mind. If the person who wrote the will had diminished capacity or was otherwise not fit to create a will, the will may be invalid. Any litigation will examine the capacity of the person who wrote the will and his or her ability to make decisions.
- Undue influence or fraud. Caretakers, guardians, and others in positions of trust may use their power for their own purposes. They may pressure a person to inappropriately modify a will, or they may use the person’s lack of capacity to take advantage of them. For example, if a guardian is the only one who benefits from a will, there may be evidence that the guardian was exercising undue influence.
- Proving validity. Wills must meet basic requirements in North Carolina. When a will is written, it must be signed and witnessed by two other parties. This helps fight forgeries and fraudulent wills. Notarization is not required, but it is helpful in proving the validity of the will. When a will does not meet these requirements, it may be invalid. The court will need to examine the type of will, the statements of witnesses, and the intentions of the person who drafted it.
- Revocation of prior wills. When someone creates a new will, it usually invalidates old versions. However, there may be conflicts if wills are not dated or properly authenticated. A court may need to determine which version of a will is the most recent and therefore governs the estate.
Our Raleigh Estate Litigation Lawyers Are Here for You
Estate litigation can be complex, time-consuming, and emotionally charged. At the Brady Cobin Law Group, we have more than 35 years of experience helping people litigate complicated estate issues. Whether you have questions about a will, concerns about a trust, or worries that someone you love is being abused, we can help. We also represent executors, trustees, and other administrators in litigation.
No matter what the trust or estate issue, our law firm has the experience, knowledge, and resources to help. Contact us today for a consultation.