probate litigation wills trusts attorney

The last thing anyone wants to do after a loved one passes away is to go to court over the decedent’s estate. Although probate can help establish an executor to oversee the distribution of assets and help the process run smoothly, there are times when an interested party will disagree with the decedent’s last will and testament, or in the handling of assets. When this occurs, probate litigation becomes necessary.

What is Probate Litigation?

Probate litigation is the legal process individuals will pursue to address a perceived wrong in the dispersing of a decedent’s property.

Who Can File for Probate Litigation?

Any interested party — an heir, beneficiary, trustee, spouse or creditor, to name a few — may file written opposition with the court for any of the following reasons:

  • Contestation of a will, including the wording or construction of the documents;
  • Redress for fiduciary breach because an executor or trustee failed in their commitment to abide by the instructions of the will;
  • Wrongfully distributed property;
  • Insufficient mental capacity of the decedent to make sound judgements;
  • Undue influence of someone in power having taken advantage of the decedent;
  • Tortious interference with inheritance claims;
  • Power of Attorney disagreements;
  • Designations in patient advocacy and living wills;
  • Guardianship or conservatorship issues;
  • Sibling rivalry, treating children differently, or excluding a child;
  • Multiple marriages or pre-nuptial agreements;
  • Improper signatures; and/or
  • The decedent did not leave behind a will or trust and the descendants cannot agree upon the even distribution of assets.

When Should Oppositions Be Filed?

A written opposition may be filed at any time. It is always better to file an objection prior to the court making an official decision on the validity of the will or trust, as then the aggrieved party may call witnesses and submit evidence. Should the objection be filed after the will has been probated (found to be valid), the aggrieved will need to prove the will to be invalid.

Is Hiring a Probate Litigation Attorney a Good Idea?

Hiring an attorney who specializes in probate litigation is necessary to uphold the rights of the aggrieved during litigation. Probate litigation has many statutes that must be adhered to; improper procedures and a failure to go through the correct evidentiary process could lead to the wrong person gaining administrative duties, or the failure of an opposition request to be fulfilled.

Be mindful to the fact that a probate litigation attorney (a trial lawyer who understands court processes and how to litigate the validity of wills and trusts) is different than an estate planning attorney (an attorney more familiar with the creation of wills and trusts than with court proceedings).

Having the correct attorney in your corner during this process will be the linchpin for a desired outcome.

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