Can I Contest the Handling of My Deceased Father's Estate After Ten Years?

Full question:

My father passed away almost 10 years ago - no will. Step-mother has been 'in charge' of home, financials all this time. They were together 15 years but only married 9 months prior to his death. Step-mother says father had an 'irrevocable trust' that she has 'access to', and she has a 'revocable trust'. She also has children from a first marriage. Her daughter is to be executor of 'the' estate when she passes, and is supposed to distribute the 'estate' equally between all 5 surviving children (her 3, my father's 2). Looking at information on the internet it looks like we were entitled to 2/3 of his total estate and all of his 'personal property' at the time of his death (Step-mother sold or gave away his 'personal property' almost immediately). I know father wanted Step-mother to be taken care of and I have tried to be respectful all these years, however I've become increasingly suspicious and concerned as I know she has destroyed old records (financial and busines related - he was a sole-proprietor of his business). I've seen no paperwork in writing anywhere, however Step-mother says my sibling and I signed something to put the house in the Step-mother's name 'for tax purposes'. I have only a vague memory of signing something within just a couple of days of my father's death, a very emotional time and we were not experienced to know any better. Tough economic times and no offer of assistance from Step-mother have me concerned that my sibling and I 'have been taken'. Is there anything we can do now - almost 10 years later? If there is, can I act on this solely or does my sibling also have to be involved / committed. I'm concerned this will not be handled properly when Step-mother passes.

• Category: Wills and Estates
• Subcategory: Probate
• Date: 04/07/2025
• State: Virginia

Answer:

The answer will depend on all the facts and circumstances involved, such as whether the assets were in trust, whether the estate was probated, and whether fraud was involved. Assets in trust pass outside the probate process. It is possible the siblings may need to be joined in the action as necessary parties. There are generally three ways that someone can be a necessary party:
1.in the absence of the party complete relief cannot be provided to existing parties
OR
the absent party claims an interest relating to the subject of the action and a disposition of the action without that person may
2.as a practical matter impair his ability to protect that interest OR
3.leave the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations. I suggest you consult a local attorney who can review all the facts and documents involved.
Fiduciaries, such as guardians or executors, owe two main duties to their clients: a duty of loyalty and a duty of care. The duty of loyalty requires that fiduciaries act solely in the interest of their clients, rather than in their own interest. Thus fiduciaries must not derive any direct or indirect profit from their position, and must avoid potential conflicts of interest. The duty of care requires that fiduciaries perform their functions with a high level of competence and thoroughness, in accordance with industry standards.

The elements of a cause of action for breach of fiduciary duty are:

(1) Plaintiff and Defendant share a relationship whereby:

(a) Plaintiff reposes trust and confidence in Defendant, and

(b) Defendant undertakes such trust and assumes a duty to advise, counsel and/or
protect Plaintiff;

(2) Defendant breaches its duties to Plaintiff; and

(3) Plaintiff suffers damages.

The elements of a claim for breach of fiduciary duty are not fixed as the claim may arise from virtually any case where one party accepts the trust and assumes the duty to protect a weaker party.

Affirmative defenses to a claim for breach of fiduciary duty can include, but are not limited to:

(1) The passing of the statute of limitations for filing the claim.

(2) Lack of fiduciary relationship (for example, when the parties did not enter a fiduciary relationship, but rather conducted business in an arm’s length transaction there is no duty to protect the other party or disclose facts which the other party could have discovered by its own diligence.)

(3) Lack of standing

(4) Approval (for example, if the alleged actions followed full disclosure to and the consent of the Plaintiff)

(5) Business judgment rule (ex. that the corporate fiduciary's actions were motivated by a bona fide interest in the well being of the corporation where shareholders are the ones owed the fiduciary duty)

An accounting may be required if ordered by a court. If you were her legal guardian or conservator, an accounting may be required to be filed with the court by statute.

Laches is an equitable form of estoppel based on delay. The theory behind allowing the defense is that the law shouldn't aid those who "sleep on their rights". For a defense of laches to succeed, it must be proven that the party invoking the doctrine has changed its position as a result of the delay, resulting in being in a worse position now than at the time the claim should have been brought. For example, the other party may claim that the assets have been transferred too long ago to recover them.

Limitation of actions refers to a law which sets the maximum period which one can wait before filing a lawsuit, depending on the type of case or claim. The periods vary by state and by type of claim. Federal statutes set the limitations for federal lawsuits. If the lawsuit or claim is not filed before the statutory deadline, the right to sue or make a claim is lost forever.

In some instances, a statute of limitations can be extended ("tolled") based on delay in discovery of the injury or fraud. It does not refer to discovery delayed by the acts of the one raising the defense. A minor's right to bring an action for injuries due to negligence is tolled until the minor turns 18 (except for a claim against a governmental agency). There are also statutes of limitations related to criminal charges, but homicide generally has no time limitation on prosecution. The contractual methods for dealing with statutes of limitations restrictions include a new promise to pay or an acknowledgment of a debt from which such promise may be inferred, or contractual limitation periods and waivers of the defense.