Toolkit · Wills and Estates
The Will Contest and Fiduciary Litigation Toolkit
26 U.S.C. § 2518
- Type
- Toolkit
- Jurisdiction
- National
- Date
- 2024-06-25
- Topic
- Wills and Estates
This toolkit collects the working documents for estate and trust litigation. The triage items include a deadline calendar, a standing and no-contest screen, and an asset map that identifies how each disputed asset actually passes before any proceeding is chosen. The information items include an attorney file request, an accounting demand, and an accounting review worksheet organized so that self-dealing and excessive compensation become visible. The pleading items include a will contest petition outline built around the presumption of undue influence, a petition to compel an accounting, and a removal and surcharge petition outline. The defense items include a motion raising standing, limitations, and the no-contest clause before merits discovery, and a fiduciary defense checklist. The resolution items include a mediation statement outline and a settlement agreement checklist covering releases, accounting approval, and tax characterization. Each is drafted to be adapted, with bracketed fields and warnings on the omissions that end cases.
The Will Contest and Fiduciary Litigation Toolkit
Wills and Estates > Estate and Trust Litigation | Published 25 June 2024 - Updated 5 June 2025 | UpLaw - uplaw.us
⚠ Probate procedure, contest deadlines, no-contest enforceability, and curative doctrines are all state law. Verify each before using anything here.
Tool 1 — Deadline calendar
| Trigger | Date received | Statutory window | ⚠ Deadline | Calendared (2 places) |
|---|---|---|---|---|
| Notice of probate / will admitted | ☐ | |||
| Trustee's notification to beneficiaries | ☐ | |||
| Creditor claim bar date | ☐ | |||
| Elective share election | ☐ | |||
| Accounting objection period | ☐ | |||
| Disclaimer — 26 U.S.C. § 2518 | 9 months | ☐ | ||
| Estate tax return — 26 U.S.C. § 6075, 26 U.S.C. § 6018 | 9 months | ☐ | ||
| Extension request — 26 U.S.C. § 6161 | ☐ | |||
| Fiduciary breach claim | ☐ | |||
| Appeal from a probate order | ⚠ Frequently short | ☐ |
⭐ The first row bars more claims than every substantive defense combined.
Tool 2 — Standing and no-contest screen
| Question | Answer |
|---|---|
| What does the client take under the challenged instrument? | |
| Under the prior instrument? | |
| By intestacy? | |
| ⭐ Does the client take MORE if the challenge succeeds? | ☐ Yes ☐ No |
| Is there a no-contest clause? Quote it. | |
| What conduct does it reach — contest only, or accountings, removal, construction? | |
| Does the state enforce it? Good-faith exception? | |
| ⭐ What does the client stand to lose if it applies? | |
| Is a safe-harbor proceeding available? | ☐ |
| ⭐ Is an accounting, removal, or construction petition outside the clause? | ☐ |
Tool 3 — Asset map
| Asset | Value | How it passes | Reached by | In dispute? |
|---|---|---|---|---|
| Real property (sole) | Will / intestacy | Probate; contest | ☐ | |
| Real property (joint with survivorship) | ⚠ Survivor by operation of law | Action on the titling | ☐ | |
| Real property (in trust) | The trust | Trust contest | ☐ | |
| Bank accounts (POD) | ⚠ Named beneficiary | Action on the designation | ☐ | |
| Brokerage (TOD) | Named beneficiary | Same | ☐ | |
| Retirement accounts | ⭐ Designation; ⚠ possible preemption | Plan proceeding | ☐ | |
| Life insurance | Designation | Insurer proceeding | ☐ | |
| Business interest | Operating / buy-sell, then instrument | Contract + probate | ☐ | |
| Personal property | Will / separate writing | Probate | ☐ | |
| Lifetime gifts | ⚠ Outside the estate | Action to set aside | ☐ | |
| Transfers under a power of attorney | ⚠ Outside the estate | Action against the agent | ☐ | |
| Total in dispute |
⚠ Complete this before choosing a proceeding. ⭐ A contest that reaches none of the disputed assets is a common and expensive error.
Tool 4 — Attorney file request
[Date] — [Drafting attorney or firm]
Re: Estate of [decedent] — request for the client file
This firm represents [client], an interested person. A proceeding concerning the [will / trust] executed [date] is [pending / contemplated]. We request the complete file, including:
- Intake and consultation notes;
- All drafts, with dates;
- All correspondence with the decedent or any other person regarding the estate plan;
- ⭐ Billing records and time entries — who initiated each communication, who attended each meeting, and who paid;
- Notes or memoranda regarding capacity;
- ⚠ Any record of who accompanied the decedent, and whether the decedent was met with alone;
- The executed original or a conformed copy, and who took possession;
- Witness and notary identities; any execution memorandum;
- Prior estate planning documents in the firm's possession;
- Any conflict waiver or disclosure signed by any person.
⚠ We anticipate the attorney-client privilege does not bar production in litigation among persons claiming through the decedent. Please provide a log for anything withheld.
[Counsel, contact]
⭐ Send this first. It decides most contests.
Tool 5 — Accounting demand
[Date] — [Fiduciary], copy to counsel
Re: [Estate / Trust of decedent] — demand for accounting
I am a [beneficiary / interested person]. I have received no accounting [since [date] / at all].
Under [the instrument, Article ___] and [state statute], I request a complete accounting for [period], including: opening balance reconciled to the inventory or prior accounting; all receipts by date, source, and amount; all disbursements by date, payee, purpose, and amount; gains and losses on sales; closing balance with a schedule of assets and values; ⭐ all transactions with you, any family member, or any entity in which you hold an interest; your compensation, its calculation, and the authority for it; all professional fees; all distributions; and confirmation that required tax returns have been filed — 26 U.S.C. § 6018, 26 U.S.C. § 6075, and estate income filings under 26 U.S.C. § 641 and 26 U.S.C. § 642.
Please respond within [30] days. ⚠ If no accounting is provided, I will petition to compel one and will seek costs.
[Name, contact, date]
⭐ This letter alone resolves a meaningful share of fiduciary disputes. Keep proof of delivery; a refusal is itself evidence.
Tool 6 — Accounting review worksheet
| Item | Reported | Verified against | Question raised |
|---|---|---|---|
| Opening balance | Inventory / prior accounting | ||
| All assets listed? | Tax returns; statements | ||
| Receipts — completeness | Statements | ||
| ⭐ Transactions with the fiduciary or affiliates | |||
| Fiduciary compensation; basis | Instrument; statute | ||
| Attorney and professional fees | Invoices | ||
| ⚠ Unexplained / round-number disbursements | Backup | ||
| Distributions — to whom, when, proportion | Instrument | ||
| Investment concentration; idle cash | Statements | ||
| Property insurance, taxes, maintenance | Bills | ||
| Gains and losses on sales | Closing statements | ||
| ⚠ Tax filings made | Returns | ||
| Closing balance | Statements |
☐ ⚠ Note the objection deadline the day the accounting arrives — approval can bar claims for the covered period. ☐ ⭐ Ask questions in writing, item by item, with dates and amounts. A specific question is far harder to deflect.
Tool 7 — Undue influence evidence matrix
| Element | Evidence | Source | Obtained |
|---|---|---|---|
| Confidential relationship | |||
| Power of attorney; transactions under it | ☐ | ||
| Trustee / guardian appointment | ☐ | ||
| Account signature authority | ☐ | ||
| Caregiving and dependence | ☐ | ||
| ⭐ Active participation in procurement | |||
| Who selected the attorney | Billing records | ☐ | |
| Who made the appointment | Phone records | ☐ | |
| Who transported the decedent | ☐ | ||
| ⚠ Who was present in the meeting | Attorney file | ☐ | |
| Who communicated the terms | Attorney file | ☐ | |
| ⭐ Who paid the fee | Billing records | ☐ | |
| Who held the original | ☐ | ||
| Substantial or unnatural benefit | |||
| Prior plan and its duration | ☐ | ||
| The change, quantified | ☐ | ||
| Comparison to similarly situated family | ☐ | ||
| Supporting indicia | |||
| ⚠ Isolation — visitor logs, phone records | ☐ | ||
| Control of finances and medication | ☐ | ||
| Contemporaneous designation changes | ☐ | ||
| Secrecy at execution | ☐ | ||
| Statements inconsistent with the document | ☐ |
⭐ All three elements shift the burden. The proponent then answers with independent legal advice and a documented private meeting.
Tool 8 — Will or trust contest petition outline
PETITION TO CONTEST [WILL / TRUST]
1. Petitioner and standing. [Relationship; what petitioner takes under the challenged instrument, under the prior instrument, and by intestacy — ⭐ establishing that petitioner takes more if the contest succeeds.] 2. Timeliness. [The notice date and the statutory period; ⚠ plead compliance expressly.] 3. The instrument challenged. [Date, execution circumstances, and the disposition.] 4. The prior plan. [Its terms, how long it stood, and the change.] 5. Capacity. [Facts as of the execution date; contemporaneous medical evidence.] 6. ⭐ Undue influence. [Plead each presumption element: the confidential relationship; active participation in procuring the instrument, with the procurement facts; and the substantial or unnatural benefit. Then the supporting indicia.] 7. Fraud / duress, if supported by a specific statement or threat. 8. Execution defects, if any — ⚠ noting any harmless-error doctrine. 9. Relief. [Denial of probate; revocation of the instrument; admission of the prior instrument; costs.]
Tool 9 — Petition to compel an accounting
PETITION TO COMPEL ACCOUNTING
1. Petitioner's interest. [Beneficiary status under the instrument.] 2. The fiduciary and the date of appointment or acceptance. 3. The duty. [Instrument article and statutory citation.] 4. The demand. [Date of the written demand; the response or its absence — attach Tool 5.] 5. The period for which an accounting is required. 6. Relief. An order compelling a complete accounting within [30] days; costs; and leave to object.
⭐ Note in the filing that this petition seeks information and does not contest the instrument — relevant where a no-contest clause exists.
Tool 10 — Removal and surcharge petition outline
PETITION FOR REMOVAL AND SURCHARGE
1. The fiduciary and the instrument. 2. The duties. Loyalty; prudence; impartiality; to inform and report; to account; to collect and protect; to distribute. 3. The breaches. [Each, with dates and amounts:] ☐ Self-dealing — [transaction, parties, and the fiduciary's interest]; ⭐ voidable in most states regardless of price absent authorization or informed consent. ☐ Failure to account — [demand and refusal]. ☐ Excessive compensation — [amount taken vs. instrument or statute]. ☐ Imprudent investment — [concentration; idle cash; absence of review]. ☐ Failure to distribute — [instrument terms vs. the record]. ☐ Failure to inform — [unanswered written requests]. ☐ Waste — [uninsured, untaxed, or unmaintained property]. ☐ Failure to pursue assets — [claims not collected]. 4. Loss. [Quantified, with the method.] 5. Relief. Removal; appointment of a successor; surcharge; denial and disgorgement of compensation; disgorgement of profits; constructive trust over traceable property; costs; and injunctive relief preserving assets pending resolution.
Tool 11 — Motion raising threshold defenses
MOTION TO DISMISS — [proponent's filing, before merits discovery]
1. ⭐ Standing. Petitioner takes [the same / nothing more] under every version and by intestacy, and therefore has no interest that would be advanced. 2. ⭐ Limitations. Notice issued [date]; the statutory period expired [date]; the petition was filed [date]. 3. No-contest clause. [Quote; state's enforcement rule; the conduct triggering it; what petitioner forfeits.] 4. Pleading deficiency. [Grounds not pleaded with the specificity the state requires.] 5. Relief. Dismissal; enforcement of the forfeiture provision; costs.
⭐ File before merits discovery begins. These defenses are far cheaper than defending the merits.
Tool 12 — Fiduciary defense checklist
☐ ⚠ Continue administering. Tax and creditor deadlines do not pause — 26 U.S.C. § 6075, 26 U.S.C. § 6161, deferral at 26 U.S.C. § 6166; ⚠ the estate tax lien runs ten years and reaches transferees — 26 U.S.C. § 6324. ☐ ⭐ Account promptly and completely. Most claims are built on the absence of an accounting. ☐ Retain separate counsel where personal liability is alleged; ⚠ estate-paid counsel defending you personally is itself a conflict issue. ☐ Suspend any transaction that could be characterized as self-dealing. ☐ Consider seeking court instructions, or depositing disputed funds with the court. ☐ Document every discretionary decision at the time it is made. ☐ Preserve all records; ⚠ issue a hold on destruction. ☐ Review inclusion questions on challenged lifetime transfers — 26 U.S.C. § 2033, 26 U.S.C. § 2036, 26 U.S.C. § 2038, 26 U.S.C. § 2042; on retained control, United States v. Byrum, 408 U.S. 125. ☐ Confirm deduction treatment of litigation costs — 26 U.S.C. § 2053; compare Commissioner v. Estate of Hubert, 520 U.S. 93. ☐ Notify any fiduciary liability carrier promptly.
Tool 13 — Mediation statement outline
CONFIDENTIAL MEDIATION STATEMENT
1. The estate. [Total value; ⭐ the amount actually in dispute — attach Tool 3.] 2. Procedural posture. [What is pending; what deadlines have passed; what discovery has occurred.] 3. Our position, briefly. [The strongest two or three facts, not the whole case.] 4. ⭐ Their strongest points, honestly stated. [Credibility with the mediator is worth more than advocacy.] 5. Cost to date and projected. [Both sides; ⚠ and whether the estate pays either.] 6. Non-monetary interests. [Recognition of caregiving; a particular item of personal property; the family home; who serves as fiduciary; an acknowledgment.] 7. Proposed structures. [In-kind distribution; a successor or neutral fiduciary; a life estate; a modified trust; staged distributions.] 8. Tax considerations. [⚠ Characterization consistent with state law — Commissioner v. Estate of Bosch, 387 U.S. 456; marital deduction effects — 26 U.S.C. § 2056; charitable — 26 U.S.C. § 2055; distribution consequences — 26 U.S.C. § 661; disclaimer timing — 26 U.S.C. § 2518.] 9. What we need to settle today.
⭐ Mediate before discovery is complete — but ⚠ not before the accounting is produced where fiduciary claims exist.
Tool 14 — Settlement agreement checklist
Signatories
☐ Beneficiaries under every version of the instrument ☐ Intestate heirs ☐ The fiduciary, individually and in the fiduciary capacity ☐ ⚠ Contingent and remainder beneficiaries ☐ A representative for minors, unborn, or unascertained beneficiaries — with court approval where required ☐ Creditors affected by the settlement ☐ ⚠ A settlement missing one interested person can be reopened.
Terms
☐ Distribution, asset by asset, with valuations and transfer method ☐ Fees — each side's counsel, the fiduciary's compensation, and who bears them ☐ ⭐ Approval of the accounting for the covered period — this closes the fiduciary's exposure ☐ Mutual, specific releases covering the instrument and the administration ☐ Dismissal of every pending proceeding ☐ Confidentiality if desired — ⚠ probate filings are public ☐ Fiduciary succession, if changing ☐ Tax allocation and reporting treatment, expressly ☐ Court approval where required, and the procedure
Tax care
☐ ⚠ Characterization consistent with state law — Bosch, 387 U.S. 456 ☐ Marital and charitable deduction effects — 26 U.S.C. § 2056, 26 U.S.C. § 2055 ☐ Litigation cost deduction — 26 U.S.C. § 2053 ☐ Distribution consequences — 26 U.S.C. § 661; income in respect of a decedent — 26 U.S.C. § 691 ☐ Generation-skipping effects — 26 U.S.C. § 2631, 26 U.S.C. § 2632; regulations at 26 C.F.R. part 26 ☐ Estate tax regulations generally — 26 C.F.R. part 20, 26 C.F.R. part 25 ☐ ⚠ Any disclaimer within nine months — 26 U.S.C. § 2518
Tool 15 — Routing table
Closing card
⭐ Three documents decide these matters: the deadline calendar completed on day one, the drafting attorney's file, and the accounting.
⚠ Three errors end them: missing the notice deadline; contesting an instrument that controls none of the disputed assets; and settling before the accounting is produced.
⭐ One question comes before all others: does the proceeding I am considering reach any asset I actually care about?
Tool 16 — Witness interview outline
⭐ Disinterested witnesses decide more of these cases than family members do. Interview them early, before memories fade and before positions harden.
The drafting attorney
☐ How long did you represent the decedent? What prior documents did you prepare? ☐ Who contacted you about this instrument, and how? ☐ ⚠ Did you meet with the decedent alone? For how long? ☐ Who else was present at any meeting or at the execution? ☐ What did the decedent say about why they wanted this change? ☐ What did you observe about the decedent's orientation, memory, and understanding? ☐ Did you make any note of capacity? Did you consider requesting an assessment? ☐ Who paid your fee? ☐ Who took the executed original?
The attesting witnesses and notary
☐ Where did the execution occur, and who was present? ☐ Did the decedent state that the document was their will? ☐ Did you see the decedent sign? ☐ How did the decedent appear — alert, oriented, communicative? ☐ Did anyone speak for the decedent, or prompt answers? ☐ Did you know the decedent, or were you a stranger brought in?
Caregivers and facility staff
☐ How often did you see the decedent, and over what period? ☐ Who visited, and how often? ⚠ Was anyone discouraged or turned away? ☐ Who managed medications, appointments, and finances? ☐ What did the decedent say about family members? ☐ Did the decedent's orientation vary by time of day? ☐ Did anyone give instructions about visitors or telephone calls?
Treating physicians
☐ What was the decedent's cognitive status on and around [date]? ☐ What assessments were performed, and what did they show? ☐ What medications were prescribed, and what are their cognitive effects? ☐ Did the decedent understand and consent to treatment decisions in that period?
⭐ Two rules for every interview. Take it before positions harden, and record what was said neutrally — an interview memorandum written as advocacy is worth less than one written as a record, and both may be discoverable.