Five Steps to Avoid and Minimize Probate and Trust Disputes

by Jaburg Wilk

[author: Lauren L. Garner, Esq.]

Probate and trust litigation can turn families into enemies and convert inheritances into attorneys' fees.  These disputes can fueled by sibling rivalry, blended families, family grudges, financial need, entitlement, revenge, greed, or spite.  Litigators have a bird's eye view of the issues which fuel such disputes and are often able to anticipate potential issues before they erupt, so they might be avoided in the future.


Some of us may need help making decisions or caring for ourselves or our finances. Some questions to answer as you select who you may want to act on your behalf if you are unable to act for yourself:

  • Who will make your medical decisions and who will pay your bills and manage your finances?
  • How much power should someone else have over you and/or your property?
  • Who can you trust?

In the absence of proper powers of attorney and living wills, court involvement in the form of guardianship and/or conservatorship proceedings may be necessary.  Even if the appointment of a guardian and/or conservator is not contested, the court process costs time and money.   In some cases where there is no suitable family member to act as guardian or conservator, or if there is too much family conflict, a private fiduciary may be appointed as guardian and/or conservator. In that event, strangers are making your most personal decisions and managing your finances. Such court proceedings offer fertile ground for family disputes, both at the time of the appointment and during the guardianship and/or conservatorship administration.

Estate planning attorneys, accountants, financial management counselors and other professionals can guide clients to secure properly drafted and executed estate planning documents.  They will discuss the responsibilities of fiduciaries, and help you make good choices as to whom you appoint as your fiduciary.  Pick the person who is qualified for the job, not the person stereotypically named.  The person appointed as agent under a medical power of attorney may not be the right person to be agent under a financial power of attorney.  A family member is usually the first choice for the fiduciary; however, a family member might not be the right choice.  This decision is not about doing what others may perceive as "fair," it is about selecting the right person for the job.  The person selected as agent should want to do the job and should be fully informed about the duties and possible risks of accepting the appointment.  Alternate or successor agents should be identified as well.  In deciding who should be your agent under a power of attorney, a probate and trust litigation attorney can help identify potential issues to plan around particularly if there are already strained family dynamics.


Make your plans in writing with properly drafted and executed wills, trusts or non-probate transfers; do it properly and keep it updated.  Think about who is getting what and who is in charge of distributing the estate or trust.  Limit disputes over distribution of personal property by making a written list designating the intended beneficiary of each item.  Don't limit the list to things of significant monetary value - families will spend huge amounts of money fighting over sentimental objects.  Again, there is no obligation to be "fair" to everyone.  Make your burial preferences known or designate the individual who is to make such a decision if there is any question or dispute.  Many families have litigated over a loved one's ashes.

It is important to select the right person(s) or entity to administer your estate as personal representative or trustee.  Consider the following questions when you make your selection:

  • Who is nominated as personal representative, executor or trustee of your estate?
  • Is that person competent, trustworthy and responsible?
  • Will that person's authority be questioned by anyone?
  • Does the person want the job?
  • Do they know what the job requires and do they have the requisite skills to be successful?
  • Does the will or trust sufficiently identify and/or give guidance for appointment of a successor fiduciary if needed?
  • Are there enough successors named?
  • Is there a procedure for appointing a new fiduciary in the absence of a named successor?

Different issues affect families differently.  Challenges such as family businesses and properties, blended families, conflicting burial instructions, overwhelming medical problems and diseases as well as changed circumstances can create a hostile environment. Think about the issues that are unique to your family when planning.  Don't assume everyone will agree on everything.


The validity of wills and trusts may be attacked by those with legitimate and well-founded concerns related to the document's creation and execution.  The validity of documents may also be attacked by those who are simply dissatisfied with the estate plan.  Wills and trusts may be contested based upon alleged undue influence on the testator or trustor and/or based upon the testator or trustor's lack of testamentary capacity when the documents were signed.  Red flag include:

  • Were there fraudulent representations?
  • Was execution of the will or trust a product of hasty action or was it concealed?
  • Was the person who benefited by the will or trust active in securing its drafting and execution?
  • Is someone just disappointed they did not get more from the estate and hoping a lawsuit will pressure others to give up some of their inheritance to avoid a legal battle?
  • Might someone wrongly attack your mental capacity even though you were competent?

Think about these potential issues as you are creating and signing these documents.


With increasing frequency, vulnerable adults are being taken advantage of by family members, caregivers, con men, or unscrupulous vendors.  Arizona has enacted laws designed to protect vulnerable or incapacitated adults from such financial exploitation.

You can protect your loved ones or friends from exploitation by looking out for danger signs including: the vulnerable adult begins making uncharacteristically large gifts to new "best friends", or a new charity or others.  Phone and personal access to the vulnerable adult is suddenly being limited.  The vulnerable adult wants to change will, trust or powers of attorney contrary to their long standing estate plan.  New professionals are being hired to take the place of long standing attorneys or accountants. Taking steps to recognize possible exploitation early on could save the vulnerable adult and his or her estate significant sums - money that could be used for the vulnerable adult's care.


After death, an individual appointed as a fiduciary (personal representative, executor or trustee) has a duty to promptly administer the estate or trust according to the will or trust and to Arizona law.  They have a duty to defend valid documents and act for the benefit of all the beneficiaries.  Fiduciaries may fail to act promptly to administer the trust or estate or they may improperly take assets.  Sometimes beneficiaries and fiduciaries have different interpretations of the same documents (all the more reason to take care with the preparation of the estate planning documents). Any of these scenarios can lead to litigation.

All parties have a duty to protect their own rights - if you ignore the problem, it will not necessarily go away.  If you ignore potential issues for too long, you may be legally barred from raising them later.


Probate and trust litigation can be expensive both financially and emotionally.  Such litigation can take a substantial amount of time and can delay and reduce inheritances.  Some litigation can be avoided through good estate planning.  Even if probate litigation is started, the manner in which it is handled can greatly impact its speed and cost.  An attorney with specific experience in probate and trust litigation will be helpful to you if you find yourself or your family embroiled in a probate or trust dispute.  Do yourself and your family a favor by preparing (and updating) a good estate plan after thinking through all the potential issues that might arise.  While you are creating your estate plan, consulting with an attorney with experience in probate and trust litigation in conjunction with your estate planning attorney can help identify potential issues and so precautions may be taken to try and avoid future disputes.

About the author:  Lauren L. Garner is a partner at the Phoenix law firm of Jaburg Wilk. She handles probate and trust litigation matters and has significant experience representing families, fiduciaries and vulnerable adults in Probate Court.  Lauren can be reached at or 602.248.1000.

This article is not intended to provide legal advice and only relates to Arizona law. It does not consider the scope of laws in states other than Arizona. Always consult an attorney for legal advice for your particular situation. This policy is written based on Arizona law for Arizona employers.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Jaburg Wilk | Attorney Advertising

Written by:

Jaburg Wilk

Jaburg Wilk on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.