What is Probate Litigation?

Probate is the legal process of transferring property after a person passes. This process is designed to distribute the possessions of a deceased person who may have passed without a will or any other type of estate planning put in place. While it may seem like creating a will or living trust is something that most people do before they pass on, in reality, the majority of estates in the US will end up going through the probate process.

However, even when you take the time to create a valid will, the probate court will still need to distribute your assets as outlined in the will. In these cases, most of the time the distribution of assets is handled easily and without conflict. But other times a legal contest may arise, leading to probate litigation.

Probate litigation refers to a lawsuit filed by a probate attorney when there is a dispute over a will or in other instances including:

• A person named in the will can no longer manage their affairs or they have become incapacitated.
• The person(s) named in the will requires a guardian or conservator.
• There is a dispute regarding who should act as a guardian or conservator.
• Someone is suspected of abusing their role as a guardian or conservator.
• And more

Additionally, probate litigation may be necessary if a fiduciary or power of attorney is suspected of any misconduct.

What Happens in Probate?

When an estate goes to probate it is either contested or uncontested. Typically, contested issues arise during the probate process due to the fact that an heir is seeking a larger share of the property than they received. Some of the reasons that one might contest a will also include:

• It is believed that someone had undue influence over the decedent
• A failure of formality in which the validity of the will comes in to question
• Or due to mental incapacity if it is believed that the decedent was not of sound mind when creating their will.

However, the majority of probated estates go uncontested. If the estate is uncontested, it will go through a basic process including:

• Collecting the probate property of the decedent
• Pay any debts, claims and taxes that are owed by the estate
• Collecting rights to income and dividends
• Settling any disputes
• Distributing any remaining property to all heirs

It is common practice for people to name an executor to manage their affairs once they’ve passed on. But if you fail to name an executor the court will then appoint a personal representative or administrator to take over the settlement of your estate.

Put Your Trust in the Probate Attorneys at France Law Firm

The skilled and knowledgeable team at France Law Firm can help you plan for your loved ones after your passing or offer you guidance during the probate process when you need it. By ensuring that your personal affairs are in order before you’re gone, you can help save your loved ones from the stress and worry that comes with contesting a will. Additionally, when your future is at stake, working with a confident and experienced probate attorney is the best way to make sure your case is handled properly. Visit us online today to schedule an initial consultation.

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“Contested matters” handled by probate courts (aka “probate court litigation”) is a broad term that includes a variety of situations, including, but not limited to:

• Will contests (a challenge to the validity of a will);
• Will and trust construction suites (a request that the court make a determination regarding the legal meaning or effect of particular wording used in a will or trust);
• Guardianship contests (a fight over (1) whether a guardian should be appointed for a particular individual who allegedly who allegedly lost his or her mental capacity and did not do any advance planning, such as executing powers of attorney), and (2) if so, who should be appointed as the guardian to make medical decisions and handle financial matters for that mentally incapacitated person);
• Trust modification and trust reformation suits (a proceeding that requests the court to change or “fix” the terms of a trust because something is wrong with the way the trust is worded;
• Trust termination suits (a legal action brought to terminate a trust because the purpose of the trust has been fulfilled or can no longer be fulfilled); and
• Breach of fiduciary duty actions (suits by beneficiaries against an executor, trustee, guardian, or agent alleging that the fiduciary failed to act in accordance with the law and/or the instrument appointing her and thereby caused damage to the beneficiaries).

Multiple Marriages
Besides sibling rivalry, another high-risk factor for probate litigation is the so-called “second marriage” situation. Many people marry for a second (or even third or fourth) time without signing a premarital agreement (pre-nup) before the wedding. Many people, including the media, still mistakenly believe that the sole purpose of a pre-nup is to specify how their assets will be divided on divorce. Although such matters can be addressed in a pre-nup, estate planning lawyers are more concerned with the “messy issues” that develop on death (they have an optimistic attitude that their clients’ marriages will work out; they have a pessimistic attitude when it comes to death, however—all of their clients will die someday). The pre-nup is one of the best ways to avoid probate litigation on death. It can also avoid a very expensive “forensic accounting” on the death of the first spouse. Many people mistakenly believe they own certain assets as their separate property (perhaps simply because the asset was in existence before the marriage and/or is titled solely in their name) when, in fact, their property may have become community or marital property, in whole or in part, during the marriage. It is better for living persons to create the necessary documentation regarding the ownership of their assets, even if it involves a pre- or post marital agreement, than to have family members fight over these matters on the death of their spouse or parent. Not to be too harsh, but it appears irresponsible (and, perhaps, also “penny wise and dollar foolish”) for persons who own any significant assets to enter into a second marriage without a pre-nup. Even if the spouses in a second marriage are themselves happy to treat all assets on hand on the death of the first spouse as joint or community property, unless the proper legal documentation is in place, there is nothing to prevent one or more children of the deceased spouse from claiming otherwise after the death of their parent. This is the classic probate court litigation case: children of the first marriage versus the spouse of the second marriage.

Keep an eye out for the second part of our series about probate litigation, and all that it entails! If you have any questions regarding probate litigation, contact France Law Firm today!

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