Explore Our Capabilities

Fiduciary Litigation

Overview

The members of Parker Poe’s fiduciary litigation practice have extensive experience in representing both fiduciaries (executors, trustees, attorneys-in-fact) and beneficiaries in disputes involving estates, trusts and powers of attorney.  Fiduciary litigation cases can arise in a variety of contexts and our attorneys have handled matters including will caveats, trust disputes, claims for the spousal elective share, breaches of duty under powers of attorney, declaratory judgment actions seeking construction of ambiguous wills and trusts, payment of fiduciary compensation and actions to remove a fiduciary.  

Through a combination of litigation and estate planning expertise, our attorneys are able to navigate the complexities of the underlying fiduciary law principles relevant in these cases, as well as effectively strategize and advocate a successful result.  Often the applicable law in fiduciary litigation cases involves the probate code, uniform trust code and tax law.  Our team of experienced estate planning attorneys provides the depth of knowledge and experience to support our litigators in successfully presenting the complexities of the applicable law in support of our clients’ position.  Through the experience of our litigators, we powerfully advocate on behalf of our clients to secure a favorable ruling or settlement.

Often fiduciary litigation matters can result in substantial legal fees, borne by the beneficiaries or estate/trust at issue.  Through implementing a thoughtful strategy and a willingness to participate in mediation, the expenses associated with a formal complaint, pre-trial discovery and trial can be avoided.  Our team of attorneys diligently prepares and actively participates in pre-suit and pre-trial mediation in an effort to successfully resolve disputes and minimize costs and risks.

Representative Experience

  • Will Caveat.  We have successfully defended several actions to overturn a Will due to the incompetency of the testator, including prevailing on a motion for Summary Judgment to uphold a contested Will.
  • Trust Disputes.  We regularly represent fiduciaries in defense of claims of breach of duty on charges of mismanagement of assets, self-dealing or negligence.  Also, we represent beneficiaries to enforce rights to distributions, receive accountings and for the removal of fiduciaries who have failed to discharge their duties due to a conflict of interest, bias or lack of experience.
  • Declaratory Judgment Actions.  We have filed numerous actions seeking the Court’s construction of an ambiguous or incomplete instrument (Will or trust), presenting the applicable law and likely construction of the instrument to provide guidance to the fiduciary (executor or trustee) and beneficiaries.
  • Removal of Fiduciary.  We have represented beneficiaries in the filing of actions to remove a fiduciary where the fiduciary has a conflict of interest, has failed to properly discharge his/her fiduciary duties, has shown bias or neglected their duties and obligations.  In addition, we have successfully defended fiduciaries in actions brought for removal.
  • Pre-Litigation/Mediation Representation.  We work with clients to prepare for and participate in mediation and other settlement negotiations.  In these matters we analyze the issues and applicable law to determine the strengths and weaknesses of their position, as well as perform financial analysis to assist our clients in assessing the economics of the potential settlement outcomes.
  • First Charter Bank v. American Children’s Home, et al (COA09-1232, North Carolina Court of Appeals).  Represented corporate fiduciary (First Charter Bank) in declaratory judgment action seeking Court’s interpretation as to incomplete Will provision (failing to provide for residuary distribution of trust).  This case also involved use of North Carolina’s virtual representation statute in matter of first impression, as well as action to seek diversification of trust assets despite provision in trust directing fiduciary to hold initial stock bequeathed to trust.
  • In the Matter of the Estate of J. Daniel Severt (COA08-203, North Carolina Court of Appeals).  Represented individual executor in action for removal and for removal of estate administration to ancillary jurisdiction.  Upholding of executor’s appointment led to entitlement of executor commission and attorneys’ fees to defend action.

Loading Content

Professionals

Loading Content