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Abused Beneficiaries: Decoding the Language of Probate and Trust Litigation

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In California as elsewhere, most people are generally unwilling participants in estate disputes. There's no difference whether the dispute entails trust litigation, probate litigation or a Will Contest. People who are frozen out of Wills and Trust usually don't use legal words of art to describe their plight. More likely, they are apt to describe themselves as a son or daughter whose inheritance was taken by a stepmother, stepfather or caregiver during the last months of their mother or father's life.

Getting terminology down in estate related litigation is somewhat confusing - even for lawyers. A "Beneficiary" means a person to whom a donative transfer of property is made or that person's successor in interest. A donative transfer is the voluntary gift of property from one person to another.

The recipient of a donative transfer who receives the gift by operation of law in an intestate estate is an "heir." An intestate estate refers to a situation where a person dies without leaving a valid will.

The recipient of a donative transfer - a gift - who receives the gift by operation of a valid Will in a "testate" estate is a "devisee."

Now I have to say that I have never had a client come to me and tell me that she is a "Devisee" under a Will. Maybe someone might have said this a hundred years ago, but unless the client is a professor of Wills and Trusts, it is an unlikely reference.

Many preliminary interviews with abused beneficiaries or harmed heirs have the initial flavor of "Another Somebody Done Somebody Wrong Song" - "A real hurtin' song about a love that's gone wrong." While the love that's gone wrong may not be adultery, it is usually a love between family members that is disrupted by the wrongdoing of another. Such wrongdoing has real-life adverse emotional and financial consequences. We come in to reverse the consequences or to minimize them.

Probate litigation attorneys or Trust litigation attorneys are engaged by beneficiaries or heirs for many reasons - among them and commonly disputes about the validity of trusts or trust amendments, the validity of the appointment of trustees or the abuse of trusts by appointed trustees, challenges over the validity of Wills as well as differences over what property is in a Trust or Estate.

The ultimate quest in Estate litigation is justice and the effectuation of the intent of the Trust maker (the "Settlor" or "Trustor") or Will maker ("Testator"). Filing Probate Court petitions and/or Complaints in California Superior Courts bring Court oversight to the determination and timing of Estate disputes. While few relish the prospect of lawsuits we live in a society where nonviolent means of dispute resolution exist. This is the role of the Courts and they do a good job at resolution - resolutions that otherwise seem intractable without the intervention of the legal system.

Hackard Law, a trust, estate & probate litigation law firm based in Sacramento and active throughout Northern California, proudly serves client interests in the following areas: Sacramento, El Dorado, Placer, Santa Rosa, Walnut Creek, Sonoma, Napa, San Mateo, Fremont, Alameda, San Francisco, Solano, Yolo, Stockton and Modesto.

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