Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Tuesday, April 22, 2008

Probate Litigation and Family Relations

Screenhunter_01_apr_22_0926Karen S. Gerstner, (Attorney at Law, Karen S. Gerstner & Associates, P.C.) has recently published her article entitled A Message to Clients . . . Avoiding Probate Court Litigation, Prob. & Prop., March/April 2008, at 56.

Here is an excerpt from her article:

When I was a young lawyer, I attended a meeting with several attorneys to discuss certain “contested matters” that had arisen after the death of a widower who died survived by four children. I was shocked to hear one of the seasoned attorneys say, “If all decedents had only one child, my workload would decrease to nothing.” Whether you go back to Cain and Abel, or only as far back as the Smothers Brothers (“Mom always liked you best”), sibling rivalry is the chief factor in many disputes arising after a parent dies. Many laypeople attribute all litigation to greed, but in the case of family situations, often much more is involved than simply greed. Sometimes children hold deep-seated resentments, which may be based on perceived unfair treatment by a parent or sibling, often going back many years. Sometimes the last living parent is the only “glue” holding the children in the family “together” (if they ever truly were, in fact, “together”). Sometimes parents have unrealistic expectations about family.


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My question is regarding the process and court rules to have an executor removed before signing the waiver and consent. This executor took all the deceadents money out of the bank one to two weeks prior to her death. Then threatened that is the other coexecutor did not resign that none of this money would be given back and claim to not know where it was. What to do? If sign waiver and consent what are the chances that the Judge will constru as contesting the will? The will states only if contesting the will or requesting that it be set aside. The contest clause does not speak to removal of executor due to breach of fiduciary duty. With out being able to see the bank records can't prove anything, if executor is not a relative and I am a child what are the chances based soley on that that I would be apointed over him? I need case law and don't know what or which attorney to see before I sign this waiver. Please help!

Posted by: m | Aug 12, 2008 3:40:30 PM

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