At Birk Law Firm, our Cape Girardeau estate litigation attorney can help you plan your estate in a manner that avoids litigation, and we can also be your advocate should you need to challenge the distribution of someone else’s estate. Kelvin Birk is an attorney as well as a certified public accountant. This unique combination gives our firm the broad knowledge and experience to handle big, complex cases as well as smaller ones, while providing personalized service and quick responses on a wide range of legal matters.
When you set down your end-of-life wishes as to how your estate should be distributed when you are gone, the last thing you want is for your will or trust to be challenged through litigation. While most estates are divided without being challenged, when someone feels they were not treated fairly and is willing to bring a lawsuit to rectify the situation, the result can be contentious litigation. Cases may drag on for long periods of time, draining the estate, causing hard feelings for everyone involved, and even breaking up families.
Proper estate planning can help prevent litigation by controlling the distribution of your estate through a variety of methods, including wills, trusts, insurance, or financial accounts with survivorship rules. However, if you try to make estate plans on your own or use generic online resources or an inexperienced attorney, mistakes can be made that leave your estate open to challenges.
If you or a family member has an estate planning or litigation issue, we are ready to help. We offer a free consultation to discuss your individual situation and determine the best way to handle it. Call us today at 573-332-8585 to get started.
An Estate Litigation Lawyer Drafts Documents to Avoid Litigation
Estate litigation attorneys help you use trusts or wills or a combination to determine how your estate will be distributed and to protect your assets.
The first step in avoiding estate litigation is to work with your attorney to formulate documents that are your mindful decisions, free of undue influence from others, that meet the requirements of the Missouri Probate Code. The estate planning lawyers at Birk Law Firm can work with you to make sure this happens. When it comes to estate planning, everyone should have a Will, which can make sure you pass assets to your chosen heirs in the manner you desire. However, a Will does require probate and your personal representative will have to deal with the difficulties involved with the probate process. Many people also should have a Trust which, when drafted property, will avoid probate. Proper estate planning also involves having documents such as a durable power of attorney and a Missouri Advance Directive that protects your right to refuse or request medical treatment if you lose the ability to make decisions yourself.
Problems that Can Lead to Estate Litigation
Common problems that can lead to unwanted estate litigation include:
Not Having a Will
Technically, you do not need a will in Missouri, but not having one can lead to litigation. If you die without a will, your estate will have to go through the probate process after you pass away, and assets will be distributed based on Missouri’s intestacy laws. Only family members are eligible to inherit your estate based on who is alive and eligible to receive an inheritance, which is generally in order as follows:
- Your spouse
- Your children and their descendants
- Your parents, siblings and their descendants
- Your grandparents, their descendants (uncles and aunts) and their descendants
- Your great-grandparents and their descendants without end.
However, this can be complicated in some situations — if there are grown children from a previous marriage, former spouses, or other potential beneficiaries involved. Having a properly drafted will that designates exactly how you wish your assets to be distributed and prevents headaches and heartaches for your loved ones may be the best thing you leave your family.
Problems with Trusts
In many situations, you should have a trust as part of your estate plan, in addition to a will. Having a trust can avoid the probate process and allow you to pass on assets such as the family home or business, investment or interests, bank accounts, personal property, collections, and other valuable property. When you set up a trust, you are called the trustor. You designate a person, called a trustee, to hold property for another person, called a beneficiary. If you are setting up a living trust, you can make yourself the trustee and keep full control over all property held in the trust while you are alive. You also designate a successor trustee, often a spouse or a child, to handle how your property will be administered and distributed after you die.
There are many types of trusts, and the right ones for you would depend on your individual situation and how you want your assets to be distributed. Options include:
- Revocable trusts (living trust)
- Long-term GST (dynasty) trusts
- Irrevocable trusts, including irrevocable life insurance trusts
- Medicaid Asset Protection Trusts (MAPT)
- Income Only Trusts
- 2503(c) trusts for minors
- Charitable lead trusts
- Charitable remainder trusts
- Grantor retained trusts
- Intentionally defective grantor trusts
- IRA management (conduit) trusts
- Special-needs trusts
- Qualified personal residence trusts.
Our trust attorney at Birk Law Firm can use these various legal instruments to not only prevent estate litigation, but to minimize estate taxes for our clients and to minimize capital gains taxes for beneficiaries.
Problems with Wills that Can Lead to Estate Litigation
Wills can be used to name specific beneficiaries for certain assets, to name a guardian for minor children and to name a personal representative (sometimes referred to as an executor) who will carry out the wishes set forth in your will after your death. The most common grounds for contesting a will include:
- Undue influence: When it is believed that caregivers, advisers, or family members have taken advantage of a loved one in vulnerable positions and pressured someone for selfish purposes
- Fraud: If distributions were made based on representations that turn out to be false or misleading, the will or portions of it may be invalid due to fraud.
- Formalities: Wills and their amendments must conform to Missouri law to be valid. In general, a will must be in writing, be signed by the testator, and be witnessed by two people.
- Lack of capacity: In making a will, the testator must be of sound mind and able to make informed and rational decisions, recognize the assets or financial holdings involved and understand the ramifications of decisions, or the will may not be valid.
Our team at Birk Law Firm can help you avoid these issues, as well. We are skilled at drafting wills, as well as working to prevent you and your heirs from harm. We’ll ensure your wishes are followed.
Estate Litigation that Stems from Problems with Personal Representatives
You should choose a personal representative you can trust, often a close family member, friend or attorney. If you are a beneficiary of an estate and don’t agree with how a personal representative or trustee is handling a last will and testament or a trust, or if you believe there is fraud involved or there are disputes over the accuracy of a trust, the administration of a trust, the accounting of a trust, or the breach of a fiduciary’s duties, our trust fraud attorneys can initiate litigation and fight for a successful resolution. While disputes and contests can be unpleasant, our skilled estate planning attorneys in Cape Girardeau can make sure the process is handled professionally.
Our Cape Girardeau Estate Litigation Attorney Can Bring Litigation if Necessary
Our estate litigation attorneys can help if you wish to challenge unfair or fraudulent conditions in a loved one’s estate.
There are many situations that can arise where our attorneys can bring litigation to challenge an estate. These may include:
- Financial abuse. For situations where an elderly or disoriented person has been taken advantage of by a caregiver, family member, or even an accountant or financial planner, who tricked them into leaving them assets.
- Beneficiary Litigation. For situations where beneficiaries of estates, trusts, and insurance policies are cheated out of their inheritance.
- Will Contests. We can file petitions for revocation, interpretation and validity if you are involved in a will contest base on fraud, lack of testamentary capacity, or undue influence. Missouri Revised Statute 473.083 states that a legal challenge to a will can only be brought by an “interested” person defined as:
- “An heir, devisee, trustee or trust beneficiary under another purported will of the same decedent, and a person who has acquired, before or after the death of the testator, all or part of the interest of such heir or devisee by purchase, gift, devise, intestate succession, mortgage or lien….”
- Trust Contests. Our attorneys handle trust contests, including petitions to determine and enforce the rights and obligations of beneficiaries and trustees. Trust contests often involve issues of testamentary capacity and undue influence and require petitions for accounting and resignation or replacement and removal of trustees.
- Power of Attorney Issues. Estates can often be looted by the wrongful use of powers of attorney prior to the decedent’s death, and our attorneys can bring a lawsuit to recover these assets.
- Fraudulent Transfer. This occurs when a caregiver, relative, or some other individual has used undue influence and taken property. In these cases, we may pursue those who took the property and those who received it from the wrongdoer.
Why Families Fight Over an Inheritance
Disputes over inheritance bring out the worst in families. Sometimes the reason seems to be pure greed and pettiness, but often the conflict is not about the object or the money itself, but about what they symbolize: importance, love, security, self-esteem, connectedness, and immortality.
Inheritance conflict can be a continuation of long-term relationship problems that resurface upon the death of a loved one. Humans are often predisposed to competition and conflict, and their sense of self can be intertwined with the approval that an inheritance represents. When a testator leaves unequal estate shares among siblings, this can also lead to disputes, especially if the inequality is the result of undue influence by one sibling against others. Being excluded from a will or trust is also a typical cause of a fight. And some families just have problems because of underlying dysfunction, mental or personality disorders, or addictions.
Our estate litigation attorneys make every effort to use our legal and personal skills to be sensitive to the needs of both testators and the people they are choosing as beneficiaries when allocating personal and financial assets and appointing fiduciaries. We strive to protect our clients from family and other predators who are most likely to manipulate and abuse.
It only makes sense to hire an estate litigation attorney who has the experience, skill and compassion to fight for your rights and justice.
Call Our Estate Litigation Lawyer in Cape Girardeau for Help Today
At Birk Law Firm, our Cape Girardeau estate planning and litigation lawyers are equipped to help you with issues ranging from the drafting of wills and trusts to complex asset protection, the administration of probate, and any litigation that may arise from estate issues.
Whether you have a small and simple need for representation or have a large and complex situation that may require protracted litigation, Birk Law Firm has the skill and experience to protect your rights. We believe in negotiating a good outcome to a legal dispute instead of jumping into protracted litigation, but will take your case to court if necessary.
Our clients benefit from the intertwining of Kelvin Birk’s legal and CPA backgrounds and experience. When we sign on as your law firm, you can count on us for strong legal counsel, from negotiations to settlement to trial.
Call us today for a free consultation about all your estate litigation issues at 573-332-8585.
ALL YOUR LEGAL NEEDS
Why Choose Birk Law?
Birk Law Firm is a small firm by choice that is big on client services. Attorney Kelvin Birk and his team are responsive to their clients’ needs. When we sign on as your law firm, you can count on us for strong legal counsel, from negotiations to settlement to trial.
Our clients benefit from the intertwining of Kelvin Birk’s legal and CPA background and experience. We provide well-rounded advice to solve both legal and financial issues and to come up with creative solutions. We use modern technology to deliver legal services in a more efficient and client-focused manner than was previously possible.
We provide personalized and compassionate service. We believe that each client’s matter is the most important matter in the world to them, and we strive to treat it that way.