Protecting Your Family’s Legacy

Estate Attorney in Denver, CO

Families are complicated. When a loved one passes, family tensions often explode, particularly when there is a large estate or family business involved.

We represent family members, trustees and personal representatives in trust and estate litigation. While we can’t solve family dynamics, we can help sort out the legal rights of the loved ones left behind. Our particular focus is on families with disputes about control or ownership of family businesses, family farms or ranches. We also represent trustees and Personal Representatives of estates in probate litigation and helping them comply with their fiduciary duties.

We are licensed to practiced law and have successfully represented estates, family members and beneficiaries in Colorado, Nebraska, North and South Dakota, and have a significant experience in family disputes in each of those states.

About Probate Litigation

Probate litigation is a generic term that refers to any proceeding in probate court. If a matter involves another person’s death or mental incapacity, then any necessary court proceeding will usually be filed in a court that has “probate jurisdiction.” Many urban counties have specialized courts to handle decedents' estates and mentally incapacitated persons. In other communities, these matters may be heard in a court that handles a number of different matters, including probate matters. Most of the matters handled by probate courts, such as admitting wills to probate and appointing executors, guardians or conservators are routine and not contested. Routine probate matters can be handled very efficiently.

Contested Matters. Probate litigation may include a variety of proceeding, including “contested” matters, such as will contests, trust litigation, estate litigation. The terms “contested matters” and “inheritance litigation” are often used interchangeably with probate litigation. All refer to situations that may require court action to resolve a dispute or fix a problem. Some contested matters do not involve animosity between the parties, while other matters involve considerable animosity and difficult family dynamics.

Uncontested Matters. Most proceedings in probate court are uncontested, i.e., no one opposes what the probate court is being asked to do. Such matters typically involve the informal probate of a will, the appointment of a Personal Representative of an estate of a deceased person, or appointment of a guardian or conservator for a person who is clearly suffering from sort of disability or mental incapacity to the extent that the person cannot manage their own finances or personal affairs.

Will Contests

Will contests are a type of probate litigation when one or more people are challenging the validity of a will. A will can be contested on various grounds. The most common reasons to contest a will are:

  • Someone claims that the deceased person’s will lodged with the probate court is not actually the will, and that there is a later or superseding will;
  • Someone claims that the will is invalid because it was not properly signed or was defectively drafted in some way;
  • Someone challenges the validity of the deceased person’s will because of claims that the deceased person changed the will because of undue influence;
  • Someone claims that they were improperly excluded from the will;
  • Someone disputes who is the proper personal representative;
  • The personal representative of the estate has not provided an interested person an inventory of the deceased person’s estate;
  • Someone claims that the personal representative is favouring an heir under the will (technically called a “devisee” or ”legatee”) over other people who are entitled to take under the will; or
  • Someone claims that the personal representative or others are stealing from the estate or mismanaging or wasting assets.

Trust Litigation

A “trust” is an arrangement, often created by a contract or “trust agreement,” in which someone’s property or money is legally held or managed for the benefit of another. Trusts are typically managed by a “trustee,” a person or an organization (such as the trust department of a bank) charged with such responsibility, usually for a set period of time.

There are a number of different types of trusts, and such as revocable trusts, irrevocable trusts, grantor trusts, so-called “defective trusts,” marital remainder trusts, irrevocable life insurance trusts (ILITs), and many other types of trusts. Trusts are very complex and technical documents, and are often created for tax planning reasons as part of an overall tax and estate plan. Trust documents should only be drafted by highly qualified attorneys who have expertise in drafting such documents and the tax implications of such documents. However, trusts can sometimes arise by operation of law, such as “constructive trusts.”

Trust litigation is a legal proceedings arising from a dispute about a trust. Some of the reasons for disputes involve the following issues:

  • Disputes about the interpretation and meaning of the language in the trust documents;
  • Disputes about the trustee’s administration or the trusts or management of the property or assets in the trusts;
  • Disputes about whether the trustee is breach his or fiduciary duty, or is stealing or misusing the assets in the trust;
  • Disputes about whether the trustee is improperly favoring certain beneficiaries of a trust over other beneficiaries;
  • The trustee is seeking guidance from a court about ambiguous or disputed language of a trust, and needs clarification on how best to proceed.
  • The trustee or beneficiaries of a trust are seeking to modify or reform the trust, i.e., a proceeding to request the court to change (or "fix") the terms of a trust because something is wrong with the way the trust is worded, or because circumstances have changed such that the trust no longer does what the settlor intended; or
  • The trustee or beneficiaries of a trust are seeking to terminate a trust because the purpose of the trust has been fulfilled (or can no longer be fulfilled).

Guardianship and Conservatorship Proceedings

A person who is suffering from a mental or physical disability such that they cannot manage his or her personal affairs, or need help in managing such affairs, may need a guardian. The person requiring a guardian is called a “ward.” As a general rule, a guardianship proceeding strips the “ward” of his or her constitutional rights to manage his or her personal affairs, so a court should appoint a guardian only to handle those matters in which the ward is unable to make decisions for himself or herself, and leave the ward with the right and ability to make all other decisions. A guardian is then a fiduciary for the ward, and is required to act in the ward’s best interests and, to the extent possible, take into consideration the ward’s wishes in the matter.

Often, guardianships or conservatorships can be avoided by advance planning with devices such as medical powers of attorney or general powers of attorney.

A person cannot manage his or her own property or finances, or who is vulnerable to exploitation, may require a conservator be appointed to manage the property or finances. The person subject to the conservatorship is technically called a “protected person.” As with a guardian, the conservator is a fiduciary required to act in the protected person’s best interests and, to the extent possible, take into consideration the person’s wishes in the management of the property or finances.

Most often there is little dispute that the person suffering from the disability needs the help and needs the protections of a guardian or conservator. However, sometimes there are disputes among the family members, medical professionals, and the person concerning the following:

  • Differences of opinion about whether or to the extent that the person is actually incapacitated and requires a guardian or conservator;
  • Differences of opinion about the scope of the guardian’s or conservator’s power or responsibility;
  • Disputes about who is qualified to act as the guardian or conservator;
  • Disputes about whether the guardian or conservator is acting in the best interests of the ward or protected person, or whether the guardian or conservator;
  • Disputes about whether the guardian or conservator is breaching fiduciary duties; or
  • The guardian or conservator is seeking guidance and/or approval of the court to take certain actions on behalf of the ward or protected person.

Keep in mind that it is not easy to deal with wills, trusts, and other probate matters; a number of thorny legal issues and human emotions are often involved in the dispute. All the good and bad in human beings come to the fore in probate litigation. A probate dispute has the potential to ruin family relationships. However, sometimes, probate litigation becomes inevitable when all efforts at diplomacy have failed.

Featured Cases

Will contest involving handwritten will. Mike Ogborn was the winning trial lawyer in one of the most high-profile will contests in Colorado history, Breeden v. Stone, 992 P.2d 1167 (Colo. 2000), a case that went to the Colorado Supreme Court. Mike Ogborn represented the heir to a holographic (i.e. handwritten) will, Sydney Stone, in a dispute with the deceased’s family.

Personal Representative Attacked. In a recent will dispute, Murray Ogborn represented a Personal Representative who was sued by two beneficiaries that had been removed from the will. Mr. Ogborn worked with opposing counsel to resolve the issue in an attempt to preserve family relationships and reach an amicable end to the dispute.

Contest Over Multiple Wills. Michael Mihm recently represented the children of a deceased Colorado judge in a will contest involving three different wills, and after prior counsel and the family had tried for many months to resolve their differences without success. Through creative lawyering, Michael was soon able to favorably resolve the dispute for his clients.

Probate Terms

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