How Can the Court Protect Estate Assets?

A probate court has the inherent jurisdiction to monitor the administration of an estate and to take such appropriate action as it may deem necessary to preserve the assets of the estate for the benefit of the ultimate beneficiaries.  The court has the authority to issue temporary injunctions freezing assets claimed to belong to a decedent’s estate, even though the ultimate ownership of those assets may be in dispute.  The function of such a temporary injunction is not to determine the ownership of the asset, but to preserve the asset pending the outcome of the determination, consistent with the duty of the personal representative to marshal and preserve the assets of the estate for distribution.

As a general rule, temporary injunctive relief may be granted where the moving party establishes that: (1) irreparable harm will result if the relief is not granted, (2) an adequate remedy at law is unavailable (eg. monetary damages are not sufficient or appropriate), (3) there is a substantial likelihood that the movant will succeed on the merits of the case, and (4) the entry of the temporary injunction will serve the public interest.   The Court will require the posting of a bond.

The circuit court may similarly protect assets in guardianship and trust proceedings.

Should you believe that estate assets are at risk of being wasted or wrongfully depleted, you should contact an attorney that handles probate litigation and consider seeking injunctive relief to protect and preserve such assets.