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Real Estate Litigation
The process of buying, selling or developing real property is one of the most complex areas of the law as they involve old common law and modern secured transactions as well as lending regulations. If you are a buyer, seller or land developer embroiled in a real estate dispute or would like to take precautions to avoid conflict, our real estate litigation attorneys can work with you to ensure your money and property rights are adequately protected against adverse parties and claims.
On paper, purchasing real estate seems like a relatively straightforward transaction: make an offer, wait for acceptance, draft a contract, settle the deal and exchange the money. However, each step of the purchase process represents a potential point of disagreement or misunderstanding. Our real estate litigation attorneys are adept at handling any problems that arise in the sale or purchase of a home, including:
- Disputes occurring in the drafting and execution of a purchase contract;
- Handling a rescission or misrepresentation by the buyer or seller;
- Problems with the title or survey;
- State and local regulations, including compliance with zoning ordinances;
- Issues with a mortgage lender;
- Disagreements involving new home construction and implied or express warranties.
Whether you are a seller with misgivings about the purchase contract, a buyer with questions about title or a developer in a dispute with your current residents, working with a real estate litigation attorney is the best way to avoid and overcome conflict in a cost-effective manner.
In the context of residential real estate, our attorneys can handle even the most unusual of problems. For instance, some buyers have run into complications with government entities over land use, requiring a land use appeal. Instead of facing the land use appeals board on your own, an attorney can present your case and argue why your planned development or historical designation is within the municipal zoning laws.
A properly drafted will should clearly identify all beneficiaries and leave no ambiguity surrounding the intentions of the Testator. Unfortunately, estate planning documents, whether wills or trusts, do not always clearly reflect the intentions of the testator. Even if the language of the documents is clear, parties may have other reasons to initiate a lawsuit or object to a will.
When someone with standing objects to a will or a trust, the estate might have to be litigated. This is sometimes referred to as a “will contest.” These disputes can be complex and should be navigated by attorneys with expertise in such matters, including an intimate knowledge of probate court rules and procedures.
Probate Courts
Typically, if a will is involved, a probate court will determine whether or not it is valid and should be executed. If the will is found to be valid, the court will oversee the allocation of assets and will ensure that the named executor carries out the wishes of the decedent in a lawful and timely manner. The court also oversees the distribution of assets if the testator, or deceased person, died intestate, without a valid will.
Who Can Contest A Will?
A protesting party may only contest a will if he or she falls within one of two categories. First, those mentioned in the will, known as the will's beneficiaries, may formally challenge it. Alternatively, if the challenger stands to inherit according to laws of intestacy (such as a family member), but is not named in the will, or is expressly disinherited, he or she may seek to contest. If one is not named as a beneficiary in the will and is not a family member eligible for inheritance, known as a distributee, he or she may not pursue a formal challenge.
In order to successfully contest a will, the protesting party must prove that the will is invalid. There are several scenarios under which a will may not be admitted, including but not limited to:
- Undue influence - If the testator altered his or her will under the threat of force or other persuasion, it is said that he or she was under undue influence.
- Mental incapacity - Similarly, if the testator is shown to have been in an incapacitated or otherwise impaired mental state at the time the will was executed, it may be considered void.
- Will does not follow procedure - A will may be contested if it was signed in the absence of witnesses, was not signed by the testator, or is otherwise not executed according to the law.
- The will was revoked - If the will was revoked after it was signed, it will also be considered void. A subsequent will, marriage, or legal action may also revoke a will.
- Fraud - Lastly, the protesting party can contest if he or she has proof that the testator was deliberately misled by a third party.
When There Is No Will
In instances where no valid will exists then intestacy laws which indicate what assets each family member is to receive go into effect. Typically, inheritance is granted to family members according to a specific order. Once the decedent's debts have been paid from the estate, the remaining assets are distributed among the testator's spouse, children, parents, siblings, grandparents, grandchildren, or great-grandchildren. Family members who are half-blood relatives are generally considered as if they were full-blood.
Without the guidance of an estate litigation attorney, the web of rules involved in the process can be overwhelming and lead to serious errors or even forfeiture of one's rights. Whether you are an executor, trustee, beneficiary or someone improperly left out of a will, contact our estate litigation attorneys to discuss your options.
HOW CAN AN ATTORNEY HELP ME WITH MY ESTATE LITIGATION ISSUES?
We are similarly skilled in reviewing the results of a title search and taking appropriate action to clear clouds on your title. A cloud on a title is a term referring to a potential claim or land interest by another party, which can result in the inability of a buyer or seller to settle the purchase contract. More specifically, banks and lending institutions will generally not lend money for the purchase of a home if there appears to be an apparent cloud on the title. By working with a real estate litigation attorney, you can avoid or settle problems with adverse possessors, agricultural tenants or creditors with judgments attached to the land.
In order to escape the many lurking pitfalls inherent in real estate transactions, we encourage you to contact our real estate firm for more information or to schedule a consultation.
