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What Is Probate Litigation?

Posted on January 30, 2022 in asset protection,probate

Probate litigation is a term that applies to any legal proceedings related to handling interference with an expected inheritance claim, addressing undue influence or incapacity issues, securing property that was taken wrongfully, quieting title to a property, seeking conciliation for a breach of fiduciary duty, disputing a trust, or contesting a will.

What this means in simpler terms is that probate litigation is the court process individuals pursue to address any direction from the court or perceived wrong related to a loved one’s trust or will. This occurs when a party raises a dispute or makes a claim during the probate process.

What is probate litigation

How the Probate Process Works

Probate is the process by which the state recognizes an individual who will manage a deceased individual’s estate. A will usually names a personal representative or executor, but in cases where there is no will, the state will select an administrator.

The probate process starts when the personal representative or executor submits the will and death certificate to the Register or Surrogate. In situations where there is no will, the process begins when an individual petitions the Register or Surrogate. The first step is examination of the death certificate by a government official to verify that the person has died. This official also verifies the authenticity of a will, or that the petitioner is qualified to be an administrator, if there is no will. Once these steps are complete and everything is determined to be in order, the administrator or executor pays a fee and obtains documentation proving that they may officially represent the estate.

If probate litigation is necessary, it is typically the result of an interested party believing that something was done wrong during this process. This party begins litigation by retaining an estate litigation attorney and filing a petition.

What Are Some Examples of Probate Litigation?

There are various reasons for an individual to seek probate litigation. Some of the most common include the following.

  • Trustee removal. If there is a trust, any dispute over the appointment of the trustee can be settled by probate litigation.
  • Disputes over guardianship. These issues are not technically a matter of probate litigation, but they are heard by the same court, so they are often placed in the same category as probate matters.
  • Spouse elective share. This probate issue occurs when a surviving spouse exercises their right to claim part of an estate.
  • Formal accountings. If an interested party believes an executor is not providing them with adequate information, this litigation may be necessary.
  • Executor fee disputes. When an individual believes that a personal representative or executor has overcharged an estate, a probate litigation lawyer may need to follow evidentiary rules and procedures to offer a judge testimony and evidence that allow the judge to order the fees to be returned.
  • Administrator appointments. This may be necessary if no will was left and the family is unable to agree on an individual to serve as the administrator. If there are disputes over who should take on this role, a contested hearing may result. In these cases, it is essential to have a probate litigation attorney. There is likely to be just a short time allowance for testimony and evidence, so if there are evidentiary failures or improper procedures the wrong party may end up with control over the estate.
  • Will contest. This litigation occurs when an individual wishes to challenge the validity of a will.

Is an Estate Planning Attorney the Same as a Probate Litigation Attorney?

Although a lawyer may practice both probate litigation and estate planning, it is important to note that not every attorney is skilled in both areas. A probate litigation attorney must be a trial lawyer with experience dealing with estate planning, trusts, and wills, as well as the court processes that relate to disputing a trust, contesting a will and similar matters. Many estate planning lawyers are well versed in creating last wills and testaments, trusts, and estate plans, but lack trial experience. If they are unfamiliar with trial preparation and procedures related to estate matters, they are likely not well-qualified to be a probate litigation attorney.

When Should You Hire a Probate Litigation Attorney?

In most cases, you should seek the counsel of a probate litigation lawyer whenever you question how a loved one managed their estate. If you are a trustee or executor, you should consult a litigation attorney if a party is questioning the way you are administering a trust estate, trust, estate, or a will. Some of the common will, estate, and trust disputes individuals call on probate litigation attorneys to handle include the following.

  • Breach of fiduciary duties. The representative, trustee, or executor who is appointed to administer a will or trust is known as the “fiduciary”. If this individual doesn’t act in accordance with the decedent’s wishes, or their legal obligations, probate litigation may be necessary to have them suspended or removed and a responsible fiduciary appointed. It may also be necessary to recover damages from the fiduciary.
  • Mental incapacity. If an heir or beneficiary feels that the deceased individual lacked the mental capacity to soundly judge how their assets should be distributed, a probate litigation attorney may challenge the validity of their will.
  • Undue influence. This term describes a scenario where someone in authority or who is influential takes advantage of the person planning their estate. Mental incapacity is a common claim regarding undue influence, as the incapacitated individual may have been especially prone to undue influence. A beneficiary or an heir who believes another party overcame the deceased individual’s own wishes for their own benefit may try to test the will’s validity or trust and ask for assets distributed in a way that the court determines are the true wishes of the decedent.
  • Contesting a will. There are often suspicious circumstances under which an estate plan, trust, or will is changed. This frequently occurs with impaired or elderly individuals in unusual situations, such as in the hospital after they have suffered a stroke, or to make an unnatural party a beneficiary. In other situations, an estate plan may contain errors or omissions that must be addressed. Regardless of the reason, the will or trust in these circumstances needs to be legally disputed in court.

Reach Out to An Attorney You Can Trust

If you are faced with any issues concerning the administration of an estate, you may need a probate litigation attorney to help you navigate the complex court procedures. Whether you are a beneficiary or an executor, Ken R. Ashworth & Associates can walk you through the necessary steps to resolve your issue. Visit our website today to see how we can help you.