What is Probate Litigation?
If you have lost a loved one, you may be dealing with the situations surrounding their estate. You may feel overwhelmed at all that needs to be done to manage their assets and debts. While the task of distributing the estate happens during probate, it doesn’t always occur without issues. If problems arise, you may need probate litigation to handle estate disputes.
What is Probate?
Probate is the legal process of distributing the assets of the estate property according to the deceased person’s will. It also includes paying any debts associated with the estate. A personal representative or executor must be appointed to properly administer the tasks of distributing the estate to complete the process of probate and complete their fiduciary duties.
Many times, it is a person who is a beneficiary of the estate. It could also be the attorneys for the estate. The court oversees the probate proceedings, including validating the will and approving certain tasks, such as the sale of assets.
The tasks of the executor or personal representative include taking inventory of the assets of the estate, having certain assets appraised, notifying the beneficiaries and creditors, paying any debts, and filing taxes for the estate. They may sell real property or other assets and will also distribute the remaining assets to the heirs and file a petition to close probate as part of the estate administration.
The process will last at least a few months and could take more than a year, depending on the size and complexity of the estate and if any problems arise. If any issues occur, you could find yourself involved in probate litigation.
Why is Probate Litigation Necessary?
Litigation during probate can be necessary for several reasons. While you might not be able to avoid it, knowing the possible reasons can help you be better prepared during your estate planning.
Contesting the Will
Early on in the probate process, you may be dealing with potential beneficiaries or family members who contests the validity of the will. They can’t contest the stipulations of the will just because they don’t like it or think it’s not fair. However, they can contest if they believe the will isn’t valid due to improper signing, mental capacity, or other suspicious circumstances. It’s up to the court to determine the validity of the last will and testament.
Reasons the Will May Be Contested
Fraud is one reason the will may be deemed to be invalid. If someone forged the decedent’s signature, it is often easy to prove with the help of an attorney.
Another reason for challenging the will is because the decedent lacked sound mind when they signed the will. Common examples include senility, dementia, or other mental health conditions that prevented them from understanding what they were doing. Mental incapacity must be proven, which may be challenging if no medical records indicated such a case.
Undue influence is another reason for the challenge to a will. If the decedent was made to feel they had to sign the will, this would be considered undue influence. The term “undue influence” can refer to intimidation and other tactics to coerce the decedent into doing what they want.
No Administrator Appointed
Once the will is determined to be valid, the next step is to appoint an administrator for the estate. Many times, the will states who is to be the administrator or executor, The probate court will approve that person and provide documents to show they are given the authority to act on behalf of the estate.
If no one was named in the will or if that person is unable or unwilling to act as executor, the court will need to appoint someone else based on state probate law.
Disagreement on Administrator
Sometimes, the family can’t agree on who will be the executor, which will require the probate court to make a decision with probate litigation. Usually, the surviving spouse or an adult child will fulfill this role, but they may not wish to take on the tasks involved.
Another issue in this situation is when the family doesn’t agree with the person appointed. They may believe the person won’t fulfill their duties or is incapable of managing the estate. The court will need to get involved through probate litigation to resolve this conflict.
Executor Needs to Be Replaced
Litigation may need to occur later on in probate if the beneficiaries feel that the executor isn’t fulfilling their responsible fiduciary duty. A litigation lawyer may request for the person to be removed and someone else appointed.
This mainly happens if the executor is believed to be embezzling money from the estate or overcharging for their services. It may be determined that the executor has taken estate assets or other property for themselves before distribution is allowed, which is a breach of fiduciary duty.
In this case, the court will need to review the evidence against the executor. If they believe the claim is valid, the court may need to appoint a new executor.
Occasionally, litigation may be necessary if the executor disputes the validity of a claim from a creditor. They may believe the debt has already been paid or that the charge isn’t accurate. The court will review the information to determine if the executor is required to pay the debt or if it will be discharged.
Does the Executor Need a Probate Attorney?
While not all states require a probate attorney to be involved in probate, it’s often a good idea. A probate lawyer can provide legal advice to make the process go more smoothly. Many legal issues can occur during the management of the estate, even if the estate is small.
If other heirs are contesting the management of the estate, the executor may need the legal services of an experienced law firm to help in the defense of their legal rights. In certain situations, the executor could be personally liable if they failed to exercise due diligence in the handling of the estate and require the services of a probate litigation attorney.
Get Help with a Probate Litigation Attorney
A probate litigation lawyer can help you defend yourself and protect your financial property if you have been accused of mismanaging the estate. They can also help with proving the validity of the will. A probate litigation attorney can provide evidence that the will isn’t valid or that the person appointed to act as administrator of the estate is unable to handle the tasks.
If the executor has stolen property or in any other way taken from the estate assets, they may be required to pay damages in probate litigation. This is one reason that it’s important to hire an experienced probate litigation attorney who can present the evidence to ensure the estate is protected. A beneficiary may file a probate litigation lawsuit to seek recompense for whatever was stolen. The attorney-client relationship for the lawsuit will be separate from legal counsel for the estate.
If you are involved in the probate of an estate that isn’t being handled correctly, you can seek legal advice from a probate litigation attorney who is experienced in probate cases like yours. While the above issues are mentioned for general information purposes, you want to know the law for your state by consulting with experienced attorneys who have knowledge in these practice areas. Be aware of the challenges that often come with probate and be prepared by hiring a probate attorney from the beginning to protect the estate. Before this situation happens, you can prevent many issues with estate planning, which puts the decedent’s estate in a trust.