California Estate Litigation: How Do I Get What’s Mine?


The complex legal minefield involved in trust and will lawsuits – Ensuring you get what you are entitled to

As you grow older, you start to consider your legacy and what you can leave to your children and family. What assets do you have that can be transferred over? Do you have any savings accounts? What about your 401k and pension funds? Do you have a property portfolio? Your estate includes many things and you should take the correct precautions and measures to ensure that it is managed correctly and that your assets are transferred as you intend. What can you do to ensure that your beneficiaries receive your assets in a timely fashion? What happens if an asset is transferred to someone else and not as intended in your family members will? Knowledge is the key factor here – The more you can understand about trust and will lawsuits, the greater chance you have of getting things right and correctly managing your or your family member’s estate.

What assets do you have and how are they titled?

An important aspect of estate management is the titling of assets. How an asset is titled can have a direct effect on how it is transferred. Many people make the mistake of believing that all their assets can be bunched into one chunk and will be transferred to the recipient in your will regardless – This is not always the case and each asset should be individually managed and titled.

What happens if an asset is titled in a descendant’s name?

For example, what happens to your property if it is only titled in a descendant’s name and there is no joint tenancy? In this instance, the property will come from the probate estate and will controls. If one of your family members or spouse is not happy with this decision they will have to instigate a will contest. Do not simply assume that because something has been agreed, this constitutes a legally binding contract – Tenancy, titles and wills can all affect how an asset is transferred.

How are joint tenancy issues solved?

A further example can be seen in the advent of a joint tenancy asset. For example, what would happen to your property if you had a joint-tenancy with your partner, but you had actually separated and your will stated that the property should be transferred to your children? In this instance the joint tenancy would be the overriding factor and the property would still be transferred to your ex-partner. If your children want to contest this, they will have to challenge the initial joint-tenancy agreement, or petition the probate estate and contest the intentions of the asset transferal.

How does the transferal of trusts differ?

Trusts present a different scenario again and have to be treated differently to wills and joint tenancy agreements. For example, maybe your parents created a trust for you and your siblings including various assets? What if this trust was changed and became unfavorable to you? What if the trust was created without your knowledge or did not include you but you are a beneficiary in your parents will? Regardless of the reason, if you want to contest the trust, you will have to file a trust contest lawsuit which differs again from a probate will contest.

Communication, planning, and forethought are key to a smooth process

It is not uncommon for a person to have to deal with several different relating asset transferal issues. You may have any one of the above issues or even a combination of several. If you are lucky, you may have no hassle at all and the whole process will be straightforward and pain-free. The main consideration from this situation is to prepare yourself, discuss your options and ensure that everything has been accounted for. Do you understand how your assets will be transferred? Are your dependents aware of how your estate has been managed? Do they know how your assets are managed and will be transferred? If you are the recipient of an asset, you should speak to the transferee and ensure that there is a clear understanding between the two of you to ensure you get what you are entitled to.


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