Estates & Trusts

Why Wait? – Estate Planning for Young Families

Estate planning is often perceived as a concern only for the wealthy.
Especially in the beginning stages of building a family, legal documentation is not often top of mind. However, for young families, establishing a comprehensive estate plan is an important and proactive step toward safeguarding their loved ones’ future. In the event of a tragedy, having a plan in place is an enormous benefit to your family. Estate planning does not need to be complicated. Instead, implementing proper legal documents can save your family from dealing with major costs and complications down the road.
Why Estate Planning Matters for Young Families
Estate planning is not solely about wealth distribution; it’s about ensuring that your and your family’s needs are met in unforeseen circumstances. Without a proper plan, decisions about your health, assets, and children’s care could be left to the courts, potentially leading to outcomes that don’t align with your wishes. Key considerations include:

Healthcare Decisions: Designating someone to make medical decisions on your behalf if an unexpected accident or illness incapacitates you.
Financial Decisions: Designating someone to make financial decisions on your behalf if you are unable to do so, rather than forcing your loved ones into a costly and uncertain court proceeding.
Asset Distribution: Ensuring your assets are passed on according to your preferences, not default state laws.
Guardianship: Appointing trusted individuals to care for your minor children if you’re unable to do so.
Privacy: Keeping your financial affairs out of public probate records.
Potential Tax Savings: There are certain types of estate plans that may be implemented to mitigate estate taxes in the event of a tragedy.

Essential Estate Planning Documents
In order to plan for the worst, there are several documents that every individual should have. Those documents include the following:

Healthcare Power of Attorney: Designates an individual to make medical decisions on your behalf when you are unable to do so.
Durable Power of Attorney: Appoints someone to handle your financial and legal matters in the event that you become incapacitated.
Living Will: Specifies your wishes regarding end-of-life care.
HIPAA Authorization: Permits designated individuals to access your medical information, ensuring they can make informed decisions about your care.
Last Will and Testament: Outlines how your assets should be distributed and names guardians for your children. Without it, state laws determine these decisions, which may not reflect your intentions. In addition, navigating these laws incurs unnecessary time and costs for your family during a time that is already difficult enough.
Revocable Trust: Allows for the management and distribution of your assets without the need for probate, offering privacy, efficiency, and reducing costs. Probate avoidance is often not a consideration for younger individuals because it seems as though there is plenty of time to plan for death. However, our advice to everyone, no matter what age, is to plan for the worst. Revocable Trusts may be amended at any time, so there is no need to wait.

Asset Ownership and Beneficiary Designations
It is essential to review how your assets are titled and who you have named as beneficiaries on beneficiary-designated assets such as life insurance policies and retirement plans. These designations can override instructions that you provide in your Last Will and Testament or Revocable Trust, so ensuring consistency across all documents is vital. Seeking advice from experienced financial experts and estate planning professionals is the best way to ensure that your wishes are reflected in all of your assets.
Regularly Updating Your Estate Plan
Life changes—such as the birth of a child, marriage, divorce, or significant financial shifts—necessitate updates to your estate plan. All of the estate planning documents discussed above may be amended or revised at any time, and regular reviews will ensure that your plan remains aligned with your current circumstances and intentions.
Seeking Professional Guidance
Given the complexities of estate planning and the nuances of state laws, consulting with an experienced estate planning attorney is advisable. They can help tailor a plan that meets your family’s unique needs and ensures compliance with our ever-changing state and federal laws. By proactively addressing these considerations, young families can establish a comprehensive estate plan that provides peace of mind and protects their loved ones’ future.

Court Rules On Personal Jurisdiction In A Trust Dispute, Holding That In Rem Jurisdiction Still Requires Personal Contacts With A Defendant, But Otherwise Affirming The Trial Court’s Denial Of An Objection To Personal Jurisdiction

In Hooten v. Collins, a dispute arose between the trustee of a Texas trust and a beneficiary who resided overseas regarding the distribution of trust assets, which primarily consisted of real estate in Texas. No. 08-23-00327-CV, 2024 Tex. App. LEXIS 6805 (Tex. App.—El Paso September 16, 2024, no pet.). The trustee filed suit for instructions in Texas regarding approval of a distribution plan and discharge relief. The beneficiary shortly thereafter filed suit in California for breach of fiduciary duty based on the same set of facts. The beneficiary then objected to the Texas court’s jurisdiction based on an alleged lack of personal jurisdiction. After discovery, the trial court held a hearing and denied the objection, and the beneficiary appealed. The court of appeals affirmed the denial of the objection.
The first issue was whether the trial court had in rem jurisdiction over the beneficiary due to the trust assets residing in Texas. The court held that even in in rem jurisdiction, a court must still have in personam jurisdiction over a defendant:
More than a century ago, the U.S. Supreme Court distinguished between in personam and in rem jurisdiction for state-court jurisdictional inquiries. Pennoyer v. Neff, 95 U.S.714, 24 L. Ed. 565 (1877). As later explained in Shaffer v. Heitner, 433 U.S. 186, 189, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977):

If a court’s jurisdiction is based on its authority over the defendant’s person, the action and judgment are denominated “in personam” and can impose a personal obligation on the defendant in favor of the plaintiff. If jurisdiction is based on the court’s power over property within its territory, the action is called “in rem” or “quasi in rem.”

Id. at 199. Consequently, the jurisdictional analysis following Pennoyer centered on the physical—and in some cases constructive—presence of people and things within the forum state. Id. at 201-03. Texas courts acknowledge the same distinction: “The general rule of in rem jurisdiction is that the court’s jurisdiction is dependent on the court’s control over the defendant res.” Costello v. State, 774 S.W.2d 722, 723 (Tex. App.—Corpus Christi 1989, writ denied). “[A]n in rem action affects the interests of all persons in the world in the thing,” but an in rem judgment’s effect is limited only “to the property that supports jurisdiction.” Bodine v. Webb, 992 S.W.2d 672, 676 (Tex. App.—Austin 1999, pet. denied). For that reason, the “court need not acquire jurisdiction over the person.” City of Conroe, 602 S.W.3d at 457-58 (citing Batjer v. Roberts, 148 S.W. 841, 842 (Tex. App.—El Paso 1912, writ ref’d)) (observing that service of process in in rem suits may be constructive, and persons with interest in rem may never know of suit).

Robert argues that this is not a true in rem action because it is not a suit against the property. We agree that the claim here would be better described as quasi in rem:
A quasi in rem proceeding is an action between parties where the object is to reach and dispose of property owned by them or of some interest therein. While an in rem action affects the interests of all persons in the world in the thing, a quasi in rem action affects only the interests of particular persons in the thing.
Bodine, 992 S.W.2d at 676 (internal citations omitted); see also Hanson v. Denckla, 357 U.S. 235, 246 n.12, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958) (“A judgement quasi in rem affects the interest of particular persons in designated property.”).
Drawing on these principles, Marsha contends that the court need not have in personam jurisdiction over Robert because Texas has in rem jurisdiction over the trust property. Robert disagrees with Marsha’s characterization of the claims and argues that, even if the location of property provides part of the alleged jurisdictional basis, a Texas court must still have in personam jurisdiction over him. In this respect, we agree with Robert that developments since Pennoyer have cemented due process protections into both in personam and in rem jurisdictional inquiries.

In Shaffer v. Heitner, the Court was asked to decide whether the seizure of property in the forum state could justify a court’s exercise of jurisdiction over nonresident defendants in a suit unrelated to the ownership of that property. Shaffer, 433 U.S. at 189. The Court traced the constitutional doctrine of state-court jurisdiction to Pennoyer v. Neff. See Shaffer, 433 U.S. at 196. But the Schaffer Court recognized the watershed change occasioned by International Shoe. Id. at 203 (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945)). After International Shoe, the focus of the personal jurisdictional inquiry changed from a state’s sovereignty over persons within its border to the “relationship among the defendant, the forum, and the litigation.” Id. at 204.

The Shaffer Court then reasoned that an assertion of jurisdiction over property is equivalent to an assertion of jurisdiction over a person’s interest in that property. It dispensed with the theoretical distinction between in rem and in personam jurisdiction and concluded that all assertions of personal jurisdiction — whether based on property ownership (i.e., “in rem” or “quasi in rem”) or personal contacts with the forum (i.e., “in personam”) — are to be measured against the minimum-contacts and fairness prongs of the International Shoe test. Id. at 212 (“We therefore conclude that all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny.”).

Several Texas courts have resolved challenges to personal jurisdiction in trust litigation where the trust res included Texas real property; each conducted a thorough minimum-contacts tests analyzing the defendant’s contacts with the state. See Johnson v. Kindred, 285 S.W.3d 895, 899 (Tex. App.—Dallas 2009, no pet.); Alexander v. Marshall, No. 14-18-00425-CV, 2021 Tex. App. LEXIS 1952, 2021 WL 970760, at *5 (Tex. App.—Houston [14th Dist.] Mar. 16, 2021, pet. denied) (mem. op.); JPMorgan Chase Bank, N.A. v. Campbell, No. 09-20-00161-CV, 2021 Tex. App. LEXIS 5001, 2021 WL 2583573, at *5 (Tex. App.—Beaumont June 24, 2021, no pet.) (mem. op.). Similarly, we must determine whether Texas has personal jurisdiction over Robert based on a detailed analysis of his alleged forum contacts and the relationship between those Texas contacts and the litigation. See Dawson-Austin v. Austin, 968 S.W.2d 319, 327 (Tex. 1998) (conducting a minimum-contacts analysis in a divorce case relating to the distribution of Texas property that was part of the marital estate); see also Smith v. Lanier, 998 S.W.2d 324, 333 (Tex. App.—Austin 1999, pet. denied) (conducting separate minimum-contacts analyses to determine the character of an estate’s property—i.e., separate or community—and to determine the propriety of jurisdiction over the nonresident representative of the deceased’s estate in her individual capacity).

Id.
The court then discussed personal jurisdiction standards:
The Texas long-arm statute extends a Texas court’s personal jurisdiction “as far as the federal constitutional requirements of due process will permit,” but no further. Thus, the contours of federal due process guide our decision.
Federal due process limits a court’s jurisdiction over nonresident defendants unless: (1) the defendant has established minimum contacts with the forum state; and (2) the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. “As a general rule, the exercise of judicial power is not lawful unless the defendant ‘purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’” Due process requires purposeful availment because personal jurisdiction “is premised on notions of implied consent—that by invoking the benefits and protections of a forum’s laws, a nonresident consents to suit there.” Purposeful availment includes deliberately engaging in significant activities within a state or creating continuing obligations with residents of the forum. It includes seeking profit, benefits, or advantage from the forum. It excludes, however, “random,” “fortuitous,” or “attenuated” contacts or the “unilateral activity of another party or a third person.” Moreover, a party may purposefully avoid a particular forum by structuring its transactions in such a way as to neither profit from the forum’s laws nor subject itself to jurisdiction there.

A plaintiff asserting that a court has specific jurisdiction over a nonresident defendant must also show that its claim arises out of, or relates to, the defendant’s contacts with the forum. Under the Texas application of that requirement, “for a nonresident defendant’s forum contacts to support an exercise of specific jurisdiction, there must be a substantial connection between those contacts and the operative facts of the litigation.” Specific jurisdiction is not as exacting as general jurisdiction in that the contacts may be more sporadic or isolated so long as the cause of action arises out of those contacts.

Id. (internal citations omitted). The court held that there was sufficient evidence to support the trial court’s exercise of personal jurisdiction over the beneficiary:
First, we acknowledge the significant role that the Texas properties play in this dispute. When it established International Shoe as the standard for all assertions of jurisdiction for in rem actions, the United States Supreme Court in Shaffer v. Heitner observed the following:

[T]he presence of property in a State may bear on the existence of jurisdiction by providing contacts among the forum State, the defendant, and the litigation. For example, when claims to the property itself are the source of the underlying controversy between the plaintiff and the defendant, it would be unusual for the State where the property is located not to have jurisdiction. In such cases, the defendant’s claim to property located in the State would normally indicate that he expected to benefit from the State’s protection of his interest.

Shaffer, 433 U.S. at 207. The Court specifically noted the interest of a forum in “the marketability of property within its borders,” “providing a procedure for peaceful resolution of disputes about the possession of that property” and the reality that “important records and witnesses will be found in the State.” Id. at 208.
The Court’s observation rings particularly true here. This trust had 21 Texas income-producing properties. Their aggregate value was in the tens of millions of dollars. The properties required the services of a property management firm to collect rents, undertake maintenance, and handle the day-to-day tasks inherent with commercial real estate. Because Robert wanted to be involved in their disposition, he asked to receive an ongoing stream of information for the properties. The income generated by the properties further required accounting advice for quarterly tax obligations, here provided to Robert by a Texas CPA. And when many of the properties were sold (at Robert’s urging), the beneficiaries only enjoyed the fruits of those sales under the benefits and protection of Texas law.
To be sure, Robert’s ownership interest in Texas property was only equitable and resulted from decisions made by the settlors and trustees. Which brings us to Robert’s core argument: as a passive trust beneficiary, he cannot be deemed to have contacts in a jurisdiction where the trust happens to own property. Owning an equitable interest in the trust property alone is insufficient to confer jurisdiction when an interested person assumes only a passive role in the trust’s administration. Johnson, 285 S.W.3d at 903 (finding no jurisdiction over passive beneficiary of trust).

…
Yet when interested parties take an active role in the trust’s affairs with the knowledge that their actions will create continuing obligations towards Texas residents, those parties are subject to personal jurisdiction in Texas… Here, Marsha’s evidence is legally sufficient to show that Robert assumed an active role in managing the trust’s assets. For example, for 18 months, Robert kept in continuous communication with the trust’s Texas-based property manager, Investar, and the trust’s tax advisor, J.M. Trippon & Co., receiving information about the financial health of the Texas trust assets. Robert attended two in-person meetings in Texas to discuss the trust’s administration, analyze its assets, and make additional requests for information from the trust’s Texas-based professionals. While Robert minimizes the Texas visit by arguing his primary purpose was to attend his father’s funeral, that explanation does nothing to refute the fact that he purposefully engaged in these contacts in Texas.
More importantly, Robert attempted to insert himself into the trust’s management such that there is some evidence he was more than a passive beneficiary… The trial court could have fairly considered how Robert’s requests had some influence over the plans to distribute the trust… Collectively, these contacts are legally sufficient to show Robert purposefully availed himself of the Texas forum: he inserted himself in the distribution plans of Trust B’s property to obtain a benefit, advantage, or profit from transactions or conveyances of Texas real estate. For the above reasons, we find the evidence is legally sufficient to confer jurisdiction over Robert.

Id. The court also held that there was a sufficient connection between the defendant, the forum, and the litigation:
This case arises out of the parties’ inability to agree on a plan to realize an appropriate and equitable distribution of a trust’s Texas property. Robert sought to influence the sale and distribution of Texas assets to beneficiaries of the trust. Additionally, Robert’s demands and criticism of Marsha’s performance as trustee are tied to the declaratory relief that Marsha now seeks. He accused Marsha of ignoring his interests and withholding information. Accordingly, some claims for declaratory relief enumerated in Marsha’s petition are a request for the court to approve her actions as trustee and an accounting of the trust.

Id. The court finally found that the exercise of jurisdiction was consistent with fair play and substantial justice and affirmed the order denying the defendant’s objection to the Texas court’s jurisdiction over him.
Interesting Note: When there are trust disputes, finding a forum or state to determine those disputes can be a very important factor in resolving them. One issue that can be confounding is filing suit in a state and a trustee or beneficiary objecting the jurisdiction’s personal jurisdiction. The Model Trust Code has a provision that expressly discusses personal jurisdiction in trust disputes. Unform Trust Code Section 202 is entitled: “Jurisdiction Over Trustee And Beneficiary,” and it states:
(a) By accepting the trusteeship of a trust having its principal place of administration in this State or by moving the principal place of administration to this State, the trustee submits personally to the jurisdiction of the courts of this State regarding any matter involving the trust.
(b) With respect to their interests in the trust, the beneficiaries of a trust having its principal place of administration in this State are subject to the jurisdiction of the courts of this State regarding any matter involving the trust. By accepting a distribution from such a trust, the recipient submits personally to the jurisdiction of the courts of this State regarding any matter involving the trust.
(c) This section does not preclude other methods of obtaining jurisdiction over a trustee, beneficiary, or other person receiving property from the trust.

The comments to the Uniform Trust Code Provision state:
The jurisdiction conferred over the trustee and beneficiaries by this section does not preclude jurisdiction by courts elsewhere on some other basis. Furthermore, the fact that the courts in a new State acquire jurisdiction under this section following a change in a trust’s principal place of administration does not necessarily mean that the courts of the former principal place of administration lose jurisdiction, particularly as to matters involving events occurring prior to the transfer. The jurisdiction conferred by this section is limited. Pursuant to subsection (b), until a distribution is made, jurisdiction over a beneficiary is limited to the beneficiary’s interests in the trust. Personal jurisdiction over a beneficiary is conferred only upon the making of a distribution. Subsection (b) also gives the court jurisdiction over other recipients of distributions. This would include individuals who receive distributions in the mistaken belief they are beneficiaries.

Under the Hooten opinion, Texas courts will lose jurisdiction to other states, who may have less of a connection to the administration of trusts, solely because of Texas’s common-law jurisdictional precedent. Other states do not require the same contacts analysis for in rem or quasi in rem jurisdiction. So, at this point, a trustee of a Texas Trust may not be able to get jurisdiction for trust disputes in Texas if there are beneficiaries who do not take an active role in trust management and live in another state. That fact does not deprive a Texas court of jurisdiction. Further, potentially, a Texas court can appoint a guardian ad litem or attorney ad litem to represent absent beneficiaries. Legislature needs to address this important issue.

Should Miller be Set Aside? Observations from a Recent U.S. Supreme Court Decision Regarding a Trustee’s Power to Set Aside Fraudulent Transfers

The U.S. Supreme Court recently decided United States v. Miller, which resolved a circuit split over whether a trustee could avoid federal tax payments under section 544(b) of the United States Bankruptcy Code.[1] In this case, a trustee utilized section 544(b) to claw back tax payments under Utah’s state fraudulent transfer statute. Ordinarily, an action under Utah law against the federal government would be barred by sovereign immunity; however, section 106(a) of Bankruptcy Code contains a waiver of sovereign immunity with respect to section 544(b). Despite this, the Supreme Court held that the sovereign immunity waiver under section 106(a) only applies to section 544 itself, and not to the state-law claims “nested” within the statute.
Background
The underlying facts of the case concerned a Utah-based transportation company, All Resort Group, which became insolvent in 2013 following financial struggles and the misappropriation of company funds by two of its shareholders. In 2014, these shareholders transferred $145,000 of company funds to the IRS to pay for their personal income tax obligations. In 2017, All Resort Group filed for bankruptcy. Shortly thereafter, the trustee sued the United States under section 544(b) seeking to avoid the 2014 tax payments as fraudulent transfers under Utah state law. The United States argued that sovereign immunity prevented the trustee’s cause of action under Utah law, while the trustee argued that section 106(a) waived the government’s sovereign immunity with respect to section 544(b). The parties cross-moved for summary judgment. The Bankruptcy Court for the District of Utah entered judgment for the trustee, holding that sovereign immunity did not preclude the trustee from suing because of the waiver under section 106(a). The District Court and the Tenth Circuit affirmed the Bankruptcy Court’s decision. This further entrenched a circuit split where the Fourth and Ninth Circuits had previously sided with a trustee, while the Seventh Circuit had sided with the government—and the Supreme Court granted certiorari.
Avoidance Powers
Under chapter 5 of the Bankruptcy Code, trustees have avoidance powers that permit a trustee to recover certain assets for the benefit of the bankruptcy estate. There is a strong policy justification for these avoidance powers, because they enable trustees to equalize distributions among creditors, and prevent debtors from offloading assets to preferred creditors on the eve of bankruptcy. Specifically, section 544(b) permits a trustee to “avoid any transfer of an interest of the debtor . . . that is voidable under applicable law by a creditor holding an unsecured claim.” 11 U.S.C. § 544(b)(1). State laws, like the Uniform Voidable Transfers Act and the Uniform Fraudulent Transfer Act, provide a common basis for a trustee to invoke section 544(b) and generally provide creditors with a cause of action to invalidate fraudulent transfers.
The Interplay between Sections 106 and 544
The crux of the dispute involved how broad section 106(a) of the Bankruptcy Code may be. The relevant portions of section 106(a) read: “sovereign immunity is abrogated as to a government unit to the extent set forth in this section with respect to . . . (1) section[] 544,” and “(5) [n]othing in this section shall create any substantive claim for relief or cause of action not otherwise existing under this title, the Federal Rules of Bankruptcy Procedure, or nonbankruptcy law.” The trustee argued that section 106 provided a broad waiver of sovereign immunity for both section 544(b) and the “applicable law” invoked by this section, whereas the government argued the waiver applied only to section 544(b) itself and did not extend to the “applicable law” nested within section 544(b). According to the majority, the government had the better reading.
The Supreme Court explained that section 544(b) requires a bankruptcy trustee to identify an actual creditor who could have set aside the transaction under applicable law. If there is no actual creditor who could have set aside the transaction, then the trustee is prohibited from avoiding the transaction. In this case, no actual creditor would be able to avoid the federal tax payment under Utah law (because of sovereign immunity), and therefore, section 106(a) cannot provide a backdoor into creating liability for the government. The Court explained that the legislative history bolsters this reading, quoting the relevant House and Senate Reports, which provide “the policy followed here is designed to achieve approximately the same result that would prevail outside of bankruptcy.” The Court cited other sovereign immunity precedents for the proposition that sovereign immunity waivers are typically jurisdictional in nature and concluded that construing section 106(a) as applying to and modifying the elements of section 544(b) would be a “highly unusual understanding of sovereign-immunity waivers.” The Court also explained that the text of section 106(a)—that it does not “create any substantive claim for relief or cause of action not otherwise existing”—plainly refutes the argument that section 106(a) extends to both section 544(b) and its elements (the underlying “applicable law”).
In sum, the Supreme Court held that while section 106(a) abrogates sovereign immunity for causes of action under section 544(b), it did not abrogate sovereign immunity under the state-law claim that supplied the “applicable law” under section 544(b).
The Dissent
In a short dissent, Justice Gorsuch reasoned that because the parties did not dispute that a fraudulent transfer claim existed under Utah law, the “applicable law” element of section 544(b) was satisfied, even though the defendant was the federal government. In Justice Gorsuch’s view, sovereign immunity would operate as an affirmative defense to such a suit, but that here, the waiver in section 106(a) prohibited the government from raising this defense. Justice Gorsuch reasoned that applying the section 106(a) waiver to the “applicable law” did not “modify the elements” of 544(b) and concluded that trustees should be permitted to avoid fraudulent transfers to the federal government.
Observations and Takeaways
The majority opinion drives the point home that the key analysis of section 544(b) is whether an actual creditor could prevail against a party outside of bankruptcy, despite the term “actual” not appearing in section 544(b)’s text. Here, since an actual creditor would not prevail against the federal government outside of bankruptcy because of sovereign immunity, the Trustee could not maintain a claim. This ruling will provide guidance to attorneys engaged in disputes even outside of the sovereign immunity context, as it reinforces that a trustee cannot succeed in bringing an avoidance action pursuant to state law if an existing creditor cannot prevail under that law.
Interestingly, the Supreme Court’s holding can be read to be in direct tension with the fundamental principle of bankruptcy that creditors in equal positions should be treated equally—meaning, in this context, that prepetition transfers to preferred creditors should be prohibited. Indeed, preventing these and making such transfers also available to other creditors is the entire purpose of a trustee’s avoidance powers.

[1] U.S. v. Miller, 604 U.S. ___ (2025).

Chuhak Chats & Tecson Tips: Bryan Montana Speaks on Creating a Trust and Then What?

Bryan M. Montana, elder law attorney at Chuhak & Tecson, P.C., in recognition of National Elder Law Awareness Month, provides this important Tecson Tip.

The typical lifecycle of a revocable living trust is as follows: 1. Create, 2. Fund, 3. Adding assets, 4. Review and Maintain and 5. Administer.
However, far too many people stop after the first step, leading to wasted money and unnecessary hassle and expense for their loved ones.
This article will help you understand each step in the process, ensuring your trust actually works when you need it.

A revocable living trust is an essential estate planning tool. Trusts help ensure your belongings do not get stuck in probate court when you die, reducing the time and expense related to settling your estate. They also help ensure that your wishes are clearly stated and followed. The most common mistake people make when they create a trust is overlooking the importance of properly funding their trust. The second most common mistake is assuming that the trust you create today is still going to work years or even decades from now when you finally pass away. This guide outlines the key steps necessary to avoid these mistakes and ensure you effectively manage your trust throughout your lifetime.
Step 1: Create and sign your trust
Creating a trust involves drafting and signing a legal document specifying who will inherit your assets, how and when they should have access to those assets and who will manage those assets in the interim. Trusts are typically kept private and do not get filed or recorded, ensuring privacy (another benefit of using a trust vs. a traditional last will and testament).
Step 2: Initial funding – Putting assets into your trust
Once your trust is set up, you need to transfer ownership of your assets (such as your home, bank accounts and investments) into the name of your trust. Alternatively, for some assets you can retain ownership in your individual name and simply name your trust as the “designated beneficiary” (aka “TOD” or “POD” beneficiary) of the asset or account. Failing to properly fund your trust can lead to probate (which your trust is designed to avoid), unnecessary taxes or worse.
Step 3: Adding new assets
Estate planning is an ongoing process. As you acquire new assets, like additional property, financial accounts or business interests, ensure they are also placed into the name of your trust. It is good practice to regularly review your balance sheet with your estate planning attorney and financial professionals to ensure proper funding and prevent future complications.
Step 4: Regularly review and update your trust
Periodically checking and updating your trust is very important. Life events such as marriage, divorce, birth of children or significant financial changes may require adjustments to your trust. Changes in the law may also necessitate updates to the terms of your trust. Your estate planning attorney can help advise you regarding how often your trust should be reviewed and whether any changes are needed.
Step 5: Administering the trust after your death
After you pass, the backup (successor) trustee you have chosen will manage and distribute your assets according to the terms of your trust —usually with the assistance and guidance of an estate planning attorney. Proper maintenance of your trust simplifies this process and significantly reduces both stress and costs for your loved ones.
Conclusion
Creating, funding and routinely reviewing your revocable trust is vital to securing your family’s financial future.Your estate planning attorney can and should guide you through every step to ensure your estate plan works smoothly.

Court Affirmed Summary Judgment Order Finding That A Will Should Be Set Aside For Undue Influence

In Monariti v. Monariti, a will contestant filed a motion for summary judgment, alleging that the will should be set aside due to undue influence. No. 14-23-00062-CV, 2024 Tex. App. LEXIS 6476 (Tex. App.—Houston [14th Dist.] August 29, 2024, no pet.). The proponent alleged that he did not receive notice of the hearing and never filed a response. After the trial court granted the motion, the proponent appealed. The court of appeals first found that the notice was sufficient and moved to the substantive issues involved. The court reviewed the evidence, which largely was the unobjected affidavit of the contestant. Even without an answer, if the motion does not resolve all issues as a matter of law, then the court of appeals should reverse the order. The court noted the standard for undue influence:
Before a will can be set aside because of undue influence, the contestant must prove: (1) the existence and exertion of an influence; (2) the effective operation of that influence so as to subvert or overpower the testator’s mind at the time of the execution of the testament; and (3) the execution of a testament which the maker would not have executed but for such influence. The elements of undue influence may be established through direct and circumstantial evidence.

Id. The court noted that the testatrix did not speak English, and that her son (the proponent) drafted the will, took her to the bank to sign it, that the witnesses were the son’s long-time friends, and that they did not speak Italian. The son admitted that he initially did not think that what he drafted was a will, so he could not have informed the testatrix that she was signing a will. The evidence also showed that the testatrix had a special-needs daughter, and that she repeatedly stated that she wanted to leave her estate to help support the daughter. The evidence showed that the new will cut out the daughter. The court of appeals affirmed the summary judgment, finding that the evidence proved undue influence as a matter of law. As there was no contradicting evidence, the court of appeals affirmed the summary judgment.

Court Held That Non-Attorney Executor Could Not Appeal An Order

In Suday v. Suday, a trial court denied an executrix’s challenge to its jurisdiction with regard to her mother’s estate. No. 04-23-00836-CV, 2024 Tex. App. LEXIS 6953 (Tex. App.—San Antonio September 25, 2024, pet. filed). The executrix filed an appeal, and the court of appeals dismissed the appeal. The court first looked at the executrix’s ability to appeal on behalf of an estate. The court stated:
Only licensed attorneys may represent a decedent’s estate at trial or on appeal. Kankonde v. Mankan, No. 08-20-00052-CV, 2020 Tex. App. LEXIS 7040, 2020 WL 5105806, at *2 (Tex. App.—El Paso Aug. 31, 2020, no pet.) (mem. op.). An appellate brief filed on behalf of a decedent’s estate by a pro se litigant who is not authorized to practice law in the State of Texas has no legal effect. Id. If no attorney intervenes to submit a brief on behalf of the decedent’s estate, the pro se appeal may be dismissed for want of prosecution. Id.; see also Tex. R. App. P. 42.3 (involuntary dismissal for want of prosecution).

Id. The court of appeals noted that it warned the executrix that she needed to retain counsel and also gave multiple extensions of time to do so. When the executrix failed to comply, the court of appeals dismissed her appeal for want of prosecution.
The court also looked at whether the executrix in her individual capacity had the right to challenge the trial court’s order. The court held that she had no standing to collaterally attack the divorce decree because she could not show that the trial court’s order dividing her parent’s Texas property was void.

The Biggest Misconceptions About Digital Estate Planning

The rise of digital platforms, online accounts, and cryptocurrency has reshaped the role of digital assets in modern estate planning. Digital assets, once an afterthought or a minor footnote in the planning process, now warrant their own conversation entirely. Most estate practitioners have likely become more aware of the need to plan for digital assets.
However, many clients still harbor misconceptions about these assets, which can muddle the planning process, leaving their digital legacies unprotected and their heirs unprepared — and as you know nearly all your clients have digital assets.
Here’s a look at six of the biggest misconceptions your clients may have about the digital side of estate planning, and why addressing them is crucial.
1. “My Will Covers My Digital Assets.”
Many clients believe that simply adding a generic clause about “digital assets” to their will is enough. While this is a good start, a clause alone is inadequate for comprehensive planning. Not to mention, wills are public documents, including sensitive digital information in a will such as account logins, private keys, or other sensitive information can create serious security risks.
Notably, without the proper digital asset authorization language included in a will (and other estate planning documents such as Powers of Attorney and Trust Agreements), fiduciaries acting under these documents, including agents, executors, and trustees, may lack legal access to important accounts and information. In addition, clauses in estate planning documents that permit fiduciary access, also must specifically authorize disclosure of the contents of electronic communications (such as email messages), which are subject to heightened privacy standards. Of course, even if estate planning documents provide fiduciaries with the requisite legal access, this does not equate to actual access without preplanning measures.
Proper planning also requires complementary tools, such as digital asset schedules and inventories, secure password vaults, and language that complies with the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), a version of which has been passed in the majority of U.S. states.
2. “Digital Assets Will Automatically Be Handled by the Service Providers After I Die.”
Many clients assume that their digital accounts will simply be managed or closed by service providers after they pass away. However, that assumption is likewise wrong. Most online services, including social media platforms and email providers, do not automatically transfer control of accounts to heirs or legal representatives.
While some providers offer account “legacy” services or offer online tools such as Facebook’s Legacy Contact feature—which allows someone to manage a deceased person’s account—many do not. As mentioned above, access to online accounts and certain digital assets by a fiduciary is governed under RUFADAA. Most clients are not aware of RUFADAA or the need to have specific legal instructions and directives in estate planning documents to access digital assets and accounts, if a service provider doesn’t have an online tool. Otherwise, heirs and legal representatives may be completely locked out or require a court order for access. This can lead to legal disputes, delays, and frustration for families already grieving a loss.
3. “I Can Just Give My Passwords to My Spouse or Kids.”
Some clients think a handwritten list of passwords (or even a shared note on their phone) is a sufficient means of transfer. This approach is problematic for many reasons:

Information is easily outdated (passwords change frequently).
How information is stored can create security risks (especially if lost, stolen, or seen by the wrong person, or not transmitted and stored with encryption).
Sharing passwords and login information violates many laws and terms of service agreements.

Estate planners need to guide clients toward secure and legal methods for granting access to their digital accounts and devices — such as using encrypted password managers, for starters. Clients who own cryptocurrency, NFTs and other more sophisticated or sensitive digital information or IP, need to use even more advanced methods to secure these types of digital interests, such as cold storage vaults, which are a form of digital storage not connected to the internet.
4. “Digital Assets Are Not Subject to Probate.”
Some clients incorrectly assume digital assets automatically bypass the probate process the same way some jointly owned assets or payable-on-death accounts do. But unless those digital assets are titled in a trust or handled via an online tool, which is similar to a beneficiary designation on an insurance policy or retirement account, they often do go through probate — and the process for gaining proper access can be expensive and time-consuming. Moreover, if the requisite legal authorizations were not included in estate planning documents, the information that eventually becomes accessible is more limited and does not include the content of electronic communications.
For digital assets, and for a growing number of traditional assets, it is more common for no paper trail to exist due to the rise in online statements and management. And it is becoming harder to even identify what assets exist unless the client has proactively documented them. Finding utility and subscription information, for instance, can be a daunting process that can cause unnecessary delays if preplanning measures are not in place. As digital assets become more ubiquitous, it’s crucial to ensure that even the most basic online accounts are considered as part of an overall estate plan.
5. “My Digital Assets Are Too Small To Worry About.”
It is common for clients to dismiss the importance of digital assets with the belief that their digital accounts and footprint hold no value after they’re gone. The reality is, even non-monetary digital assets can create significant challenges for heirs and legal representatives at death.
Your clients’ digital legacy can hold sentimental value that their heirs may want to preserve — photos, emails, and social media profiles all contribute to a person’s digital story. Ensuring these assets are properly managed is just as important as safeguarding tangible personal relics.
Some of your clients may ask, “What’s the big deal if I forget to close my Instagram account? There’s nothing in it.” But this is a dangerous misconception. While an online account may not have inherent monetary or sentimental value, it can become an entry point for cyberattacks and identity theft and present significant issues and additional time and expenses for heirs and legal representatives.
In the last few years, identity theft of the deceased has been on the rise, resulting in protracted estate administrations and thousands of dollars in additional fees.
Non-financial digital assets can have hidden costs, and the failure to plan for them can lead to administrative headaches and financial burdens for loved ones that can easily be avoided through preplanning measures.
6. “Digital Estate Planning Is Just for Crypto Investors.”
I hear this one all the time. People think “digital assets” and “crypto” are interchangeable. Therefore, digital asset planning must only be relevant to those with significant cryptocurrency holdings or at least a deep understanding of technology. Estate planning professionals should be addressing digital assets for all clients—not just those who are involved in the tech or cryptocurrency spaces. After all, the average person today has around 168 online accounts, including email, social media, online banking, and cloud storage. That list grows daily, for both tech wizzes and luddites alike.
Remember: even if a client dies with no crypto and a negative net worth, their families can still inherit a complex digital scavenger hunt. That’s why virtually everyone needs digital estate planning.
The Bottom Line
If you’re not discussing digital estate planning with your clients in 2025, you’re leaving them — and your practice, potentially — exposed. Digital assets are an integral part of every estate, and planning for them is the only way to ensure a seamless transition of assets, minimize loss, and decrease the likelihood of cybercrimes.
By integrating digital estate planning into your practice, you can provide your clients with the peace of mind in knowing their digital assets are properly protected and will be managed according to their wishes.
This is too important to put off. Don’t let your clients fall victim to these and other common misconceptions — help them plan for their digital future today.

Withdrawal Liability: Third Circuit Paves New Path for Pension Funds to Collect from Affiliated Employers

Takeaways

The Third Circuit recently held in Laguna Dairy that, under certain circumstances, a settlement agreement over a withdrawal liability dispute can constitute a revised withdrawal liability assessment under ERISA.
Employers should be mindful that all trades or businesses under common control are treated as a single employer and are jointly and severally liable for withdrawal liability under ERISA.
Withdrawal liability under ERISA is an evolving area of law, and some courts are willing to broadly construe the statutory language in favor of multiemployer pension plans.

Seventh Circuit Affirms that Employer’s Withdrawal Liability Cannot Be Based on Post-Rehabilitation Plan Contribution Increases

We recently reported on a district court decision holding that the Central States Pension Fund’s calculation of withdrawal liability should not have included contribution rate increases imposed after the Fund’s implementation of a rehabilitation plan. In Central States, S.E. & S.W. Pension Fund v. Event Media Inc., Nos. 24-1739 & 1740-42, 2025 WL 1185368 (7th Cir. Apr. 24, 2025), the Seventh Circuit affirmed two prior district court rulings that had reached the same conclusion.
The Multiemployer Pension Reform Act of 2014 (“MPRA”) requires rate increases to be excluded from the withdrawal liability calculation unless the increases satisfy one of two statutory exceptions. The parties agreed that the first exception (pertaining to increases due to increased levels of work, employment, or compensation) did not apply, and the Seventh Circuit affirmed that the plan could not satisfy the second exception. The second exception applies if: (i) the plan is amended to increase benefits, and (ii) the plan’s actuary certifies that the increase will be paid for out of contribution rate increases not contemplated by the rehabilitation plan. The court held that the plan could not satisfy either requirement because the increase in benefits predated the rehabilitation plan, and even if it did not, there was no actuarial certification that the benefits would be paid using the increased contributions or that those increases were not contemplated by the rehabilitation plan. In so ruling, the court rejected the plan’s urging to interpret the exceptions to effectuate the purposes underlying MPRA, concluding that the statutory text was unambiguous, and such policy considerations were left to Congress.
Proskauer’s Perspective
Employers have been challenging the Central States Pension Fund’s efforts to include post-2014 contribution rate increases in its withdrawal liability calculations for several years. Barring a subsequent appeal and reversal, the Seventh Circuit’s decision stands to conclusively resolve those cases, and provide interpretive guidance for other plans administered in the Seventh Circuit. Regardless of location, employers that contribute to or have withdrawn from plans that have adopted funding improvement or rehabilitation plans should closely review their withdrawal liability assessment to determine whether rate increases are being excluded in accordance with MPRA.

Do You Really Want to Be an ERISA Fiduciary?

Two recent class action lawsuits charging a breach of fiduciary duty under the Employee Retirement Income Security Act (ERISA) have increased the stakes and raised important considerations regarding a plan fiduciary’s duty of loyalty/prudence and engagement in prohibited transactions. This follows a string of cases over the years that have expanded the responsibilities of ERISA fiduciaries in the context of the use and investment of retirement plan assets.

Quick Hits

The U.S. District Court for the Northern District of Texas recently ruled that an employer breached a duty of loyalty to plan participants by permitting an investment manager to invest retirement assets in holdings based on nonpecuniary environmental, social, and governance (ESG) factors. A major factor in the case was that the CFO of the employer also acted as the fiduciary overseeing the plan asset investment managers.
The Supreme Court of the United States recently ruled in another case that involved allegations of prohibited transactions under ERISA, 29 U.S.C. § 1106(a)(1)(C). The main issue was whether a plaintiff is required to plead facts addressing the elements of a prohibited transaction exemption under 29 U.S.C. § 1108(b)(2)(A) in order to state a viable prohibited transaction claim under 29 U.S.C. § 1106(a)(1)(C).

First Case
In a recent class action filed in the Northern District of Texas against an employer and its fiduciary committee responsible for several 401(k) plans, the plaintiffs alleged the fiduciaries had breached their duties to the plans when investing plan assets in ESG investments. The court ruled that there was no breach of the duty of prudence but found that there had been a breach of the duty of loyalty.
Duty of Prudence
The court concluded that there was no breach of the duty of prudence concerning the selection and retention of investment managers. According to the ruling and ERISA’s relevant provisions, fiduciaries are required to perform their duties with “the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.” 29 U.S.C. § 1104(a)(1)(B).
Most prudence claims are process-focused. A key factor in the court’s decision was the robust process the employer maintained for monitoring, selecting, and retaining managers in the plans’ core investment lineup. The court found the employer and fiduciary committee’s method to be thorough and well-documented. Additionally, the court viewed favorably the defendants’ efforts to mitigate risks by hiring an external, industry-leading consultant to continuously monitor all aspects of the plans.
The court emphasized that the duty-of-prudence analysis is “inherently comparative” and objective, relying on how fiduciaries should act “consistent with prevailing industry standards.” This comparative approach underscores the importance of adhering to industry norms and best practices in fiduciary decision-making.
Duty of Loyalty
In contrast to the first ruling, the court determined that there had been a breach of the duty of loyalty because the employer’s interests were intertwined with the investment manager’s. ERISA’s duty of loyalty is the “highest known to law,” requiring fiduciaries to act solely and exclusively in the best interests of the plan’s participants and beneficiaries. The court ruled that this standard had not been met.
A significant concern for the court was the undue influence the investment manager had over the employer, evidenced by its ownership of approximately $400 million of the employer’s fixed income debt and 5 percent of the employer’s stock.
Another critical issue identified by the court was the dual role of the employer’s chief financial officer (CFO), who managed the day-to-day operations of the investment manager while also holding a fiduciary duty to the employer as an officer of the company. These conflicting interests were exacerbated by the CFO’s admission that the relationship between the employer and the investment manager regarding ESG investments was circular. The court found that these overlapping interests and roles regarding plan and employer compromised the fiduciary duty of loyalty, highlighting the need for clear and uncompromised dedication to the best interests of plan participants and beneficiaries.
While the court found that there had been a breach of the duty of loyalty, it did not outright prohibit plan fiduciaries from looking at ESG factors for investment plans. In State of Utah v. Micone (February 14, 2025), the U.S. District Court for the Northern District of Texas upheld a 2022 U.S. Department of Labor regulation allowing fiduciaries to consider ESG factors if the factors served as a tiebreaker between equally beneficial financial options. The court emphasized that financial benefits must be the sole and primary consideration, with ESG factors considered only after confirming the financial benefits of an investment for the plan beneficiaries.
Second Case
The Supreme Court of the United States reviewed a case brought by employees who participated in a university’s 403(b) plans from 2010 to 2016. Among other claims, the employees alleged that payments made to the plan’s service providers were prohibited transactions under ERISA, 29 U.S.C. §1106, due to excessively high recordkeeping fees. The district court dismissed the employees’ prohibited transactions claim, and the U.S. Court of Appeals for the Second Circuit affirmed, primarily based on the courts’ conclusion that the employees were also required to plead facts supporting the nonapplication of relevant prohibited transaction exemptions in §1108.
Before the Supreme Court, the employees argued that §1106(a)(1)(C) of ERISA prohibits all transactions between plan fiduciaries and service providers and that the exemptions in §1108 are affirmative defenses that a defendant must plead and prove. The fiduciaries argued that plaintiffs must also plead and prove that the exemption facts negate application of the §1108 exemptions.
On April 17, 2025, the Supreme Court reversed the Second Circuit’s decision. The Court held that §1108 exemptions are affirmative defenses and that “defendant fiduciaries bear the burden of pleading and proving that a §1108 exemption applies to an otherwise prohibited transaction under §1106.” This holding drastically reduces the requirements for plaintiffs to plausibly allege that a prohibited transaction occurred, and it will likely expose fiduciaries to greater potential liability and expense because it will lead to more prohibited transaction claims getting past the pleading stage, forcing defendants to engage in expensive discovery.
Next Steps
Plan sponsors may want to review the makeup of their fiduciary committees to ensure they do not include high-ranking members who have a conflict of interest to the employer stemming from their duty of loyalty to the company as an officer or director. Instead, plan sponsors may want to consider appointing individuals who, while perhaps holding a lower rank such as a manager, are still knowledgeable about investments to make prudent choices for the plan.
Plan sponsors may also want to ensure that their committee delegation is properly documented, and that the fiduciary committee is actively fulfilling its responsibilities. It is crucial that the committee members possess a thorough understanding of their responsibilities, including investments and fees associated with the plan.
When selecting a plan vendor, a plan sponsor may want to verify whether the vendor holds a significant ownership stake (e.g., at least 5 percent) in the employer and make note of other external influences that may sway investment decisions.
Finally, ERISA requires plan fiduciaries to conduct proper due diligence of the investments, their returns over time, and the fees being paid by the plan as compared to other similarly situated plans.

Supreme Court Revives ERISA Litigation Dismissed in Second Circuit: Will the Supreme Court’s Adoption of a Liberal Pleading Standard Increase ERISA Class Actions Under Section 406?

On Thursday, April 17, a unanimous Supreme Court held that a less demanding pleading standard is applicable when plaintiffs bring an Employee Retirement Income Security Act of 1974 (ERISA) class action under ERISA Section 406, despite concerns that this might lead to a flood of meritless claims. This recent decision affects nearly all employers. The underlying question in Cunningham v. Cornell University, et al.—whether pleading a prohibited transaction claim under ERISA Section 406 involving a plan and a party in interest also required pleading elements of ERISA Section 408, which lays out exemptions to that prohibition—has been answered unanimously by the Supreme Court on Thursday, April 17. Succinctly, the Court held that “[t]o state a claim under §1106(a)(1)(C), a plaintiff need only plausibly allege the elements contained in that provision itself, without addressing potential §1108 exemptions.”
1. Procedural History of Cunningham v. Cornell University, et al.
The lawsuit, Cunningham v. Cornell University, U.S., No. 23-1007, alleged various breaches of fiduciary duty and prohibited transactions under ERISA. Specifically, the plaintiff class alleged that payments made to the plan’s service providers constituted prohibited transactions because the fees charged for investment management and recordkeeping were too high. The plaintiff-appellant class participates in “403(b)” retirement plans administered by Cornell University (Cornell). A 403(b) retirement plan is analogous to a 401(k) plan, but a 403(b) plan is sponsored by certain tax-exempt organizations, including nonprofits and not-for-profits.
The district court granted Cornell’s motion to dismiss the prohibited transaction claims, and the Second Circuit Court of Appeals affirmed the dismissal. The Second Circuit, on appeal, held that “to state a claim for a prohibited transaction pursuant 29 U.S.C. § 1106(a)(1)(C), it is not enough to allege that a fiduciary caused the plan to compensate a service provider for its services; rather, the complaint must plausibly allege that the services were unnecessary or involved unreasonable compensation, see id. § 1108(b)(2)(A), thus supporting an inference of disloyalty.”
2. The Supreme Court Unanimously Weighs In
The Supreme Court disagreed. The Court held that the reference in ERISA Section 406 to the exemptions in ERISA Section 408 does not reflect a heightened pleading standard for violations under ERISA Section 406. Instead, Justice Sotomayor, penning the Opinion for the judges, explained that the exemptions in ERISA Section 408 are presented in the “orthodox format of an affirmative defense” and requiring plaintiffs to plead and disprove all potentially relevant exemptions would be “impractical.”
The unanimity of the Opinion is significant. Justices Brett Kavanaugh and Samuel Alito expressed their concern during oral argument regarding the ramifications of the plaintiff-appellants’ position. Even going as far as suggesting it “seems nuts” to plead a prohibited transaction simply due to the existence of a recordkeeping arrangement. Justice Kavanaugh said that accepting the petitioners’ position would be an “automatic ticket to pass go” and get to discovery, summary judgment; the litigation would substantially increase. Even Justice Sotomayor, who penned the majority opinion, noted she had “serious concerns” that the Court’s ruling could lead to an “avalanche” of meritless litigation, going so far as to outline methods for district courts to manage a potential influx of cases.
Specifically, the Opinion suggested utilizing Rule 11 sanctions on meritless complaints and potentially cost shifting (awarding defense attorneys’ fees and costs if they prevail on a motion to dismiss). The Opinion even suggested that district courts should more frequently employ the “not commonly used” Federal Rule of Civil Procedure 7(a)(7) to handle allegations that service provider transactions are prohibited by ERISA. Under Rule 7(a)(7), district judges can require plaintiffs to argue that the affirmative defenses in ERISA Section 408 are inapplicable—namely, that the prohibited transaction exemption does not apply—in a brief replying to a defendant’s answer to the claim.
3. Potential Implications of this Decision
Even prior to this ruling, ERISA class actions were already growing. In 2024, over 136 class action lawsuits alleging ERISA violations were filed. While ERISA class actions have not reached the 2020 high of 200 ERISA class action lawsuits, there has undoubtedly been an upward trend in bringing these suits. And, with the newly clarified liberal pleading standard, both for-profit and nonprofit employers may see an uptick in lawsuits alleging violations of ERISA Section 406. While ERISA Section 408 is not considered part of the pleading requirements for a ERISA Section 406 violation, employers can still rely on ERISA Section 408 exemptions as affirmative defenses.

Contesting a Will in Pennsylvania: The Legal Process

In Pennsylvania, contesting a will is a serious legal action that should not be taken lightly. It can be emotionally challenging, especially if you believe that the last will and testament will not reflect the true intentions of the deceased. However, the law in Pennsylvania provides specific grounds and procedures for individuals who wish to contest a will. This blog post will explore the key aspects of contesting a will in Pennsylvania, including the legal grounds, process, and potential outcomes.
The Legal Process of Contesting a Will in Pennsylvania
Contesting a will in Pennsylvania typically takes place in the Orphans’ Court, a division of the Court of Common Pleas. The process generally involves:

Filing a Petition
To contest a will, the individual (or “interested party”) must file a petition in the Orphans’ Court. This petition must clearly state the reasons for contesting the will and provide supporting evidence. The interested party must also demonstrate that they have standing to contest the will, which generally means they are a person who would inherit under a prior will or under Pennsylvania’s intestacy laws.

Discovery Process
Once the petition is filed, both sides will engage in a discovery process where they exchange information and documents. This may involve depositions, interrogatories, and the production of relevant evidence to support or challenge the validity of the will.

Trial
If the case is not settled through mediation or negotiation, a trial will be held in the Orphans’ Court. The person contesting the will bears the burden of proving their claims. This often requires expert testimony, including testimony from medical professionals or handwriting experts, depending on the nature of the contest.

Appeal
If the court rules against the party contesting the will, there may be an option to appeal the decision to a higher court. However, appeals are not guaranteed and must be based on legal grounds.

Time Limits for Contesting a Will in Pennsylvania
In Pennsylvania, a will contest must generally be filed within one year from the date the will is probated. The probate process is the legal procedure in which the court formally accepts the will as valid. It is important to note that if you wait too long to file a contest, you may lose your right to challenge the will.
Potential Outcomes of a Will Contest in Pennsylvania
If you successfully contest a will, the court may declare the will invalid. The estate will then be distributed according to a previous valid will or, if there is no valid will, according to Pennsylvania’s intestacy laws. However, if the court rejects your contest, the will remains in effect, and the estate will be administered according to its terms.
Contesting a will in Pennsylvania can be a complex and emotionally taxing process. Whether you believe a will is invalid due to lack of capacity, undue influence, fraud, or any other reason, it is crucial to have a clear understanding of the legal grounds and the steps involved. If you are considering contesting a will, it is highly advisable to consult with an experienced probate attorney who can guide you through the process, help build your case, and ensure your rights are protected.