There are many scenarios in which a dispute concerning inheritance rights in an estate can arise.

If a decedent dies with a Will or Trust, these documents might be declared by the court to be invalid if at the time of executing the documents, the decedent does not have proper mental capacity by way of illness, mental dementia, or being on medication at the time of signing the document. Other reasons that might be used by the court to invalidate a Will or a Trust is if through undue influence by one of the beneficiaries of the Will or the Trust, the beneficiary takes advantage of the decedent’s infirmity or mental weakness, and by reason of this the beneficiary is named in the Will or Trust document as someone who will inherit the entire estate. Other reasons are duress or mistake.

Sometimes a Will or a Trust is ambiguous in terms of its meaning and legal proceedings will be necessary to have the court determine the meaning of the document, which will then determine which persons will inherit from decedent’s estate.

Sometimes whether the property in decedent’s estate is considered “separate property” or “community property” will dictate who is to inherit that property, in cases where decedent dies without a valid Will or Trust that disposes of that property. In general, separate property is property that decedent owned before he married, or is an inheritance that he received, or is property by agreement with his spouse to be designated “separate”. On the other hand, generally speaking, community property is property acquired by the decedent during marriage from community earnings. However, there are many exceptions to these general rules. As an example, if a spouse owns a house in his name before marriage, then pays the mortgage on the house during his marriage with community property earnings, the house may become a combination of community and separate property.

If a decedent dies without a Will or a Trust, and leaves no children or grandchildren, sometimes relatives of decedent’s predeceased spouse who died within 15 years of his death will be able to inherit from decedent’s estate, if he left real estate.

Sometimes there are more than one Will or Trust and the court has to determine which document will be utilised in distributing decedent’s estate.

When decedent’s Will does not expressly name a spouse or child whom he wishes to disinherit, they may have certain rights if the Will or Trust document was executed prior to marriage or to a child being born.

Sometimes a child of decedent is entitled to inherit, but because the child was born out of wedlock, other family members who are unsure of the parent-child relationship will contest the right of the child to inherit.

Sometimes the surviving spouse, whether or not a beneficiary or heir to the decedent’s estate, is entitled to certain benefits in the estate, such as the right to live in the decedent’s home, whether or not the surviving spouse inherits it, and the right to financial support during probate proceedings for a period of time. Again, court proceedings will be necessary to provide these benefits to the surviving spouse.

Prior to any litigation being instituted to contest a Will or a Trust, by a beneficiary who feels that he or she is entitled to more of an inheritance than the document indicates, an analysis has to be made as to whether or not there is a “no contest” clause in the document. These clauses typically are placed in these documents and provide that if any litigation is commenced to contest any provision in the estate planning document, or document itself, that that person will be disinherited. It is often a gray area as to whether or not a certain action undertaken by a beneficiary may or may not constitute a contest under a Will so as to trigger the “no contest” clause.

Interrelated with inheritance right issues are situations where the decedent was abused in some way, either physically or financially. Financial abuse often arises where a caregiver or other person in a fiduciary capacity appropriates property of the elder, or causes the elder to include the caregiver in the elder’s Will or Trust. Under some circumstances, these dispositions in a Will or Trust can be invalidated in court, and are presumed to be invalid under the law in certain situations.

In order to protect a person’s inheritance rights or to assert those rights, legal proceedings, including a court trial, will be necessary. Typically these are trials before a judge instead of a jury.

Other situations involve objecting to the activities of the executor of the estate, or the trustee of the Trust, such as the making of improper expenditures, or monetary withdrawals, or making improper investment decisions with regard to estate assets. Actions can be instituted in court which compel the executor or the trustee to account for all of his actions, and the court will surcharge the estate representative upon proof of any wrongdoing.

With respect to most of the above court actions, the heir to the estate who wishes to hire an attorney to protect or assert his rights can either pay the attorney’s hourly rate, or alternatively, request the attorney to take the case on a contingency fee arrangement. The benefit of the contingency fee arrangement is that the attorney would only receive a fee if he recovered estate property for the benefit of the client. If the attorney was unsuccessful, the client would not have to pay any attorney’s fees.