While not common, there are times when litigation is necessary to protect the rights of the intended beneficiaries. Wills and Trusts must represent the person’s intent at the time of execution, and be signed willingly while the person is of sound mind and under no constraint or undue influence. Probate litigation may be as simple as having the Probate Court interpret ambiguous language in a Will or Trust, but it also may involve a direct challenge to a Will or Trust’s validity. Second marriages with adult children from the parties’ previous marriages is a common situation that can lead to a challenge when an unexpected change is made to a Will or Trust. Another risk factor is when a person makes a significant change to his or her estate plan late in life. If he or she was under the influence (or duress) of a family member or care giver at the time of the change, a challenge can be expected.
There also are instances where litigation is needed to assert the rights of a surviving spouse. In South Carolina, if a spouse is excluded from a husband or wife’s Will and has not waived his or her rights to an elective share in a prenuptial agreement, the spouse is entitled to one-third (1/3) of the deceased spouse’s probate estate. This right will need to be asserted in Probate Court.
If you need to assert your rights in probate court, or simply wish to discuss your current situation, we invite you to schedule an appointment.
We look forward to working with you.