Here is the most complete list of ways to protect your inheritance available in one place: currently over 100 separate legal theories and possible steps to take.
Most of these legal theories or ideas will not apply to any given case. This list is intended as a brainstorming tool. Rule 11 requires that you have a good faith basis for believing any claim actually applies before pleading it. And in discovery you will likely need to respond to an interrogatory identifying all factual bases for every legal theory that you plead. Additionally, where the factual allegations necessary to plead an legal theory are not set forth, the defense may be dismissed pursuant to Rule 12(b).
This is divided into sections. Use the following Table of Contents to skip ahead to the section that seems most relevant to you.
Table of Contents
WARNING ABOUT NO CONTEST CLAUSES
Before you do anything, make sure there is not a No Contest Clause (aka In Terrorem Clause) in a relevant legal document. This provision is often found in a Last Will and Testament or trust document. However, it could be in an amendment to the document. A No Contest Clause basically says that if you take any action to contest the Will or Trust or the actions of the person in charge, then you are disinherited. These clauses are typically drafted very broadly. I’m not a fan of them because they can put you in a Catch 22 position. Here’s what I mean. If the Personal Representative or Trustee is doing a bad job, you want to be able to remove that person so you can protect your inheritance. However, the No Contest Clause will often be drafted so broadly that if you even make a phone call to that person you could be arguably triggering the No Contest Clause.
If you are unsure of whether there is a No Contest Clause, have your lawyer send a letter to the other person – the one you have the beef with – asking for them to provide any document that might include one of these clauses. They will either provide a copy, or they will say they are unaware of any such provision. In the latter case, if you take action and then they claim there was a No Contest Clause, you have some defenses. (The defenses might be Unilateral Mistake or Promissory Estoppel.)
If there is a No Contest Clause or In Terrorem Clause in your situation, you need to work with an attorney to protect your inheritance. We have experience and can help you. Just fill out the convenient contact form, or simply call us at 602-443-4888. We’re here to help
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- Try talking to the other person. If you need help or want support, consider getting a family relationship consultant’s help. If your family has a trusted advisor like a pastor or long-time friend, see if that person can intervene and resolve the dispute. Use assertive communication.
These Apply to Both Probate and Trust Administrations
The following apply to both decedent’s estates (when there is no trust) as well as to trust administrations:
- File Petition for Declaratory Judgment (Do this before taking any other action if concerned that a No Contest clause will be enforced against you. Ask the court to order that if you proceed further, you will not be violating the No Contest clause. This also applies if there is a question of interpretation of the law or a document.)
- Request Supervised Administration.
- Track deadlines.
- Require accountings.
- File Petition for Surcharge against anyone who caused damage to the estate or trust.
- File Petition to Enforce No Contest Clause (if that works in your favor).
- Get professional estate management company to conduct a detailed inventory.
- Petition for Undue Influence. Basically, you are asking the court to order that a legal document or action is invalid due to undue influence.
- Petition for Breach of Fiduciary Duty. Do this if you think the Trustee has failed to live up to the standard required by the law.
- Petition for leave to bring a claim for financial exploitation of a vulnerable adult pursuant to A.R.S. 46-456.
- Petition for Unjust Enrichment.
- Petition for Accounting.
- Petition or complaint for temporary restraining order and/or preliminary injunction and/or permanent injunction.
- Unjust enrichment
- Quantum meruit
- Trespass to chattels
- Defamation (libel & slander)
- Intentional Infliction of Emotional Distress
- Negligent Infliction of Emotional Distress
- Negligent Supervision/Retention
- Interference with right to privacy
- Invasion of Privacy
- Public Disclosure of Private Facts (invasion of privacy)
- False Light (invasion of privacy)
- Improper Disclosure of Health/Medical Information (HIPAA)
- Civil Extortion
- Fraud and Constructive Fraud
- Sexual Battery
- Unfair Business Practices
- Whistleblower Protection Act
If You Are the Personal Representative
- Get a probate attorney. (Contact us so we can help.) There are a lot of requirements. If you mess something up, you can be held personally liable. Plus, your lawyer’s fees get paid out of the estate. So there is no reason not to get help.
If You Are the Trustee
- Hire a trust administration attorney. (Contact us so we can help.) If you make a mistake, you can be financially responsible. And besides, your lawyer’s fees get paid out of the estate. So there is no reason not to get help.
These Apply to Probates (When No Trust Involved, and You Aren’t the Personal Representative)
If in probate:
- See if you can become the Personal Representative. You will need to file something in Court for this to happen. Talk to a probate attorney.
- File Petition to Remove and Replace Personal Representative
- Ask an attorney to interpret the Last Will and Testament for you. Perhaps the current Personal Representative has misinterpreted the Will.
- If you are not the Personal Representative, ask an attorney to advise you on what the Personal Representative should be doing.
- Petition for Breach of Fiduciary Duty. Do this if you think the Personal Representative has failed to live up to the standard required by the law.
- Petition to set aside codicil to will.
These Apply to Trust Administrations (When You Aren’t the Trustee)
If you are dealing with a trust administration, here are some ideas:
- Become Trustee
- File Petition to Remove and Replace Trustee. Consider nominating a professional fiduciary to serve as trustee.
- If the trust has a Trust Protector, talk to that person. See if the Trust Protector should take some sort of action.
- If you are not the Trustee, ask an attorney to advise you on what the Trustee should be doing.
- Petition to set aside amendment to trust.
- Oral Trust
If Your Loved One is Still Alive
If your loved one is still alive:
- Don’t be a stranger. This may seem obvious to some people. However, but you would be amazed at how many times adult children are shocked to find out that their parent changed his or her Will or Trust to name someone other than the children to receive the parent’s estate when the parent dies.
- Document your loved one’s testamentary wishes. A person’s verbal statements are not going to be carried out unless they are committed to writing. This must be done in a proper way. Talk to a lawyer! (We can help. Contact us.)
- Deal with family photos and heirlooms now. Photos can be copied. Your loved one’s wishes regarding heirlooms can be documented. It’s best not to wait until later if someone else is going to be in control of these. (Especially if you don’t trust the person who will be in charge.)
- Convince your loved one to talk to a good estate planning attorney.
- Talk to your loved one about what there is, and find out how it is titled.
Protect Your Inheritance from Divorce
- Sign a prenuptial or postnuptial agreement that clearly designates the inheritance as separate property of the recipient.
- Have your family members keep assets in trust for you.
- Create your own estate plan. You do not need to create an estate plan with your spouse. You can go to an attorney on your own and create your own will and trust.
Protect your Inheritance from Creditors
- Ask to have your inheritance go to an irrevocable trust with you as the beneficiary. It should be a discretionary Trust with creditor protection designed under the Uniform Trust Code.
- Have your inheritance go to a dynasty trust. The trust will be for you during your lifetime. Then it will be for the benefit of your children, grandchildren, and further descendants.
These last two points are inter-related. A typical dynasty trust is or will become irrevocable. An irrevocable trust can have Generation Skipping Transfer Tax provisions (aka “Dynasty Trust” provisions).
If there is a dispute over life insurance
- File an Interpleader action.
There are many ways that there could be a dispute over life insurance. For example, maybe someone committed undue influence to have your loved one change the beneficiary. Or maybe your loved one lacked legal capacity to make an intelligent choice. Also, perhaps the deceased person was required to maintain you as a beneficiary (such as pursuant to a divorce decree).
The insurance company isn’t going to research these issues. They will simply pay out to the named beneficiary. If you think the wrong beneficiary is named, you need to act fast! Contact us right away.
If your inheritance is part of a business
- Abuse of Process
- Account Stated
- Adverse Possession
- Aiding and Abetting
- Alter Ego
- Assault and Battery
- Attractive Nuisance
- Breach of Fiduciary Duty
- Breach of Promissory Note
- Business Disparagement
- Breach of Contract
- Civil Conspiracy
- Equitable Estoppel
- False Imprisonment
- False Light
- Fraudulent Misrepresentation
- Gross Negligence
- Intentional Infliction of Emotional Distress
- Intentional Interference with Inheritance
- Intentional Misrepresentation
- Malicious Prosecution
- Misappropriation of Trade Secrets
- Negligence Per Se
- Negligent Entrustment
- Negligent Hiring, Supervision, Retention
- Negligent Infliction of Emotional Distress
- Negligent Misrepresentation
- Negligent Undertaking
- Premises Liability
- Products Liability
- Promissory Estoppel
- Prima Facia Tort
- Quiet Title
- Quantum Meruit
- Res Ipsa Loquitor
- Respondeat Superior
- Spoliation of Evidence
- Theft and conversion
- Tortious Interference with existing contract
- Tortious Interference with prospective contract
- Tortious Interference with Business Relations
- Breach of Warranty
- Unfair competition
- Unfair Debt Collections Act
- Unjust Enrichment
- Vicarious liability
- Wrongful death and survival actions
Ready to Protect Your Inheritance?
We have experience and can help you. Just fill out the convenient contact form, or simply call us at 602-443-4888. We’re here to help.
Author: Paul Deloughery – Sudden Wealth Protection Law, PLC. I graduated With Honors from Indiana University – Bloomington in 1989 with a B.S. in Music Performance and a B.A. in History. I received a Masters degree in Music from the University of Iowa in 1993. I graduated With Honors from the University of Iowa College of Law in 1986. During law school, I was a research assistant to Professor Alan Widiss. I helped Professor Widiss update his treatise Uninsured and Underinsured Motorist Insurance. I now run a law firm in Phoenix, Arizona dedicated to helping Arizonans with their Estate Planning, Asset Protection, Probate and Family Law needs. I am the author of Lasting Wealth: A Revolutionary Method of Family Wealth Transfer, which is available on Amazon.