What is Probate Litigation? Staff Profile Picture
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The process of contesting a will in court(known as probate litigation) is a legal process that varies from state to state.  These cases represent millions of spouses, children, siblings, friends, business partners, and other agencies locked into an often emotionally challenging legal process.

In most cases, probate litigation is not necessary, particularly if the decedent has left a clear, standard will. However, if there is a legitimate reason to contest a will, beneficiaries or other agencies may have the right to challenge the will in probate court. 

Do I Need a Probate Lawyer to Contest a Will?

While some parties may choose to enter probate without legal representation, there are many reasons why hiring an experienced probate attorney is the best option for successful litigation.

Understanding the Will

A will is an embodiment of a deceased person’s last wishes, as well as a (sometimes highly technical) legal document. A probate attorney can help heirs and beneficiaries understand the exact terms of inheritance and asset distribution outlined in the will. 

Experience in Probate Law

The most important thing a probate attorney brings to your case is experience. A long and successful history representing clients ensures your probate lawyers will represent your claim with the requisite professional knowledge and expertise.

Mediate Family Conflict

In many probate litigation cases, siblings, spouses, parents, or children contest which parts of the decedent’s estate are theirs to claim. While a probate attorney is not an official mediator, their lack of personal connection with any parties involved ensures that litigation is efficient, professional, and timely.

Meet Important Deadlines

 All challenges to a will must be filed promptly. A probate lawyer can help you meet important deadlines and ensure your claim is filed before the statute of limitations in your state.

Common Probate Situations that Require Litigation

Most standard wills (wills that leave property to a spouse/children) do not lead to probate litigation. However, there are a few common probate situations that, more often than not, result in eventual contests and probate litigation. 

Child Left Out of Will

If a child is left out of a will,   the document may be contested, though it is rare for a decedent to leave nothing to their children or to disproportionately favor one child over another. If there is any reason to doubt the validity of their parent’s will or the reliability of the estate’s executor, a child who is left out of a will may have legal grounds to contest.

Spouse Left Out of Will

The omission of a spouse in a will may also lead to a contest. Due to the legal protections afforded spouses in most states, those who are omitted from a decedent’s will are often successful in litigation. 

Multiple Marriages

If the decedent was married more than once and wishes to leave property or assets to an ex-spouse,  a current spouse may object and dispute the will. Note that, unless the heir or beneficiary was married to the decedent at the time of death, there may be no legal grounds for such actions.

Dysfunctional Families 

If there are major conflicts within a decedent’s immediate family (between the decedent’s spouse and children, the decedent’s children, or the decedent’s siblings) objections may arise that cannot be settled amongst the family. Highly contentious families are much more likely to encounter disputes over wills. 

Unreliable Executor

If the heirs or beneficiaries of an estate feel that the executor is acting in a way that contradicts their legal duties (see details below), they may take the issue up in probate court to either: 

a) enforce the executor to carry out the distribution of assets as stipulated by the will, or;
b) appoint a new executor.

How To Reduce the Odds of a Contested Will

Probate litigation can be highly emotional and create lasting rifts among the decedent’s loved ones. Adequate preparation is the key to preventing potential conflict,  By taking the following actions, individuals can lay the groundwork to ensure the distribution of their estate is uncontested.  

Discuss Final Wishes with Family

Discuss the contents of your will, how you would like your assets distributed, and explain your reasoning with loved ones. For example, if you have sentimental reasons for bequeathing a family home or a valuable antique to one of your children over another, explain this to each party to prevent misunderstandings or hurt feelings. 

Leave a Letter of Intent

If you cannot discuss your wishes with your loved ones for any reason, you may still make your intentions clear after death by leaving a letter of intent. A letter of intent is a document in which a person who makes a will can explain the reasons behind the division of their estate. While a letter of intent is not a legally binding document, it allows the decedent to account for their choices and clarify any questions heirs and beneficiaries may have. 

No-Contest Clause

Consider adding a no-contest clause to your will. While not a perfect solution, a no-contest clause essentially means that should a beneficiary contest the will and lose their claim they must forfeit any assets they were originally bequeathed. However, this failsafe does not work if the individual is left with low-value assets (or none at all). Therefore, it is advisable to try other avenues before resorting to a no-contest clause. 

Duties of the Executor or Administrator

Acting as executor or administrator of a will is a significant responsibility.  The executor of a will is personally responsible for ensuring the final wishes of the decedent are carried out as intended. If an executor or administrator is negligent in upholding their duties, heirs and beneficiaries may have legal grounds to contest the individual’s appointment. 

Filing (“Probating”) the Will

The legal process of filing a will (sometimes known as “probating the will”) is one of the first responsibilities of the executor of an estate. Depending upon the state where the decedent resided, their will must be filed with the probate court within 10 to 30 days after death. 

Notifying Interested Parties

Executors must notify interested parties of both the decedent’s passing and the opening of the probate case. Interested parties may include individuals (such as heirs to the estate) or various agencies (such as the Social Security Administration). These parties should be notified promptly that the probate has been filed. 

Inventory of the Estate

The total property, assets, investments, trusts, etc. of an estate must be accurately inventoried. Part of this inventory process involves valuing individual assets or the estate as a whole. An accurate valuation of the estate is extremely important as it relates to the fair division of assets. 

Paying Estate’s Debts and Taxes

Debts left by the decedent and taxes on the estate should be paid before assets are distributed. If the estate’s value exceeds the decedent’s total debts, the executor may require the consultation of a probate attorney. 

Distribution of Estate’s Assets

The executor of the will must oversee the distribution of the estate to each beneficiary in a timely manner. This may be more complex than it initially sounds; some estates are relatively straightforward, but the more complex an estate is, the more time it takes to allocate each beneficiary’s portion. Once the estate has been divided according to the decedent’s will or the ruling of the probate court, the estate is considered “closed.”

What’s the Statute of Limitations on Probate?

Every state has different laws regarding the statute of limitations on probate. Generally,  heirs and beneficiaries have two years after a will has been admitted to the probate court to contest the document. While this affords heirs and beneficiaries some time to review their legal options, the reality is that the sooner legal action is taken, the more likely it is that any challenge to the distribution of the estate will be successful. 

How to Find a Good Probate Attorney

If you are looking for quality representation for probate litigation, has done the research for you! We have compiled an extensive directory of experienced probate lawyers nationwide, so you can conveniently find expert attorneys in your area. Additionally, you can contact our concierge service team at 848-BookPro (848-266-5776) for more assistance in finding the best probate lawyer for you. 

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