This is my tenth, and last, post on my continuing series describing the Virginia Probate Administration and concerns estate litigation. You can read previous posts on this series including Part I: introduction to probate (here), Part II: qualifying to be the personal representative (here), Part III: the duties and liabilities of the personal representative (here), Part IV: the initial steps (here), Part V: inventory and accountings (here), Part VI: Exemptions and Creditors (here), Part VII: Augmented Estate and Exemptions (here), Part VIII: Taxes (here) and Part IX: Ancillary Probate Administration (here).
Most probate administration issues are handled by the Clerk of the Court or Commissioner of Accounts with only minor supervision by a judge. But as in life, things are not always that easy, and judges sometimes are required to adjudicate issues that arise during the probate administration. Sometimes, the issue might simply require judicial direction in solving a matter while other times it could turn into a full-blown litigation.
The most common type of estate litigation that occurs is called a will contest. After the will has been submitted to probate a party in interest objects by either, contesting the validity of the will or trying to probate another will that the party in interest believes is the correct last will and testament of the decedent.
Most will contests revolve around the following issues including:
- the decedent lacked the requisite mental capacity to make a will,
- the will did not meet Virginia code for properly making a valid will,
- a person in a position of trust and confidence with the decedent used that position to unduly influence the decedent regarding provisions of the will,
- a person used duress, or other means to force the decedent to include provisions in the will the decedent might not have normally made, and
- the will is a result of fraud.
A party in interest has 6 months after the entry of the order of probate to file an appeal with the clerk of the court. The matter will be placed on the court docket for a hearing. If an order admitting the first will to probate or an order on an appeal of the clerk’s order of probate, a suit may be brought to impeach or establish a will within 1 year of the entry of the order admitting the first will to probate.
The second most common issue that arises in estate ligation is seeking aid and direction from the court on a matter facing the personal representative. There are numerous decisions a personal representative makes during the administration of an estate and many personal representatives seek the advice of professions like attorneys and accountants. However, in some complex or ambiguous subjects, court direction is necessary.
The typical issues that a court is asked to resolve include:
- conflicting or ambiguous provisions in the will or codicil
- uncertainty concering whether a particular asset is part of the decedent’s estate, and
- the determination on whether certain distributees are part of the will.
A personal representative can be personally liable for an erroneous disbursement and seeking court guidance could be beneficial to put assets in the hands of the right party. However, the court, not wanting to hand hold a personal representative, will only truly address genuine issues and will only address legal determinations concerning the will or law, and not factual issues.
The last category of estate litigation is actions against a fiduciary including the personal representative or trustee for failing to perform one of their duties. A personal representative or trustee that breaches their fiduciary duties could be personally liable for damages.
Issues against fiduciaries can be brought by Commissioner of Accounts. For example, if a personal representative fails to timely a required filing, like an inventory or accounting, the Commissioner of Accounts will issue a summons requiring the personal representative to file the required document within 30 days. If the personal representative fails to comply with the summons, the court will then issue a show cause summons to the personal representative for the failure to file the necessary documents. Further, the court will ask the fiduciary why a contempt of court order should not also be issued.
A beneficiary can also instigate a proceeding against a fiduciary and plead to the court to have the fiduciary removed. Not wanting a beneficiary to cry to the court every time a fiduciary did not agree to a beneficiaries demand (like request for money), a court will only remove a fiduciary for good cause like fraud or self-dealing on the part of the fiduciary. If a fiduciary is removed the court will appoint a successor fiduciary to oversee the trust or probate administration.
There is also another type of litigation against a fiduciary that arises and that comes in the context of when a party interested in the estate files a suit alleging the fiduciary surcharged or falsified the account filed with the Commissioner of Accounts. This allegation can even be filed if the account was approved by the Commissioner of Accounts. There is a ten (10) year statute of limitations on the filing of an allegation of surcharge. The surcharge can not be filed by a party who filed or joined in the filing of exceptions with the Court regarding the Commissioner’s report on the account. Further, the party alleging the surcharge must specifically state the items in the account that are the subject of the suit, and the suit will be limited to those issues.
This is my last post in this series on Virginia Probate Administration. I hope you have enjoyed and learned something about the intricacies of probate administration.