What is Probate Litigation?

by Mike DeBlasi | January 15, 2021 10:20 am

Are there problems with the estate of your close relative or someone you know? Is something fishy going on? Probate litigation can provide resolution.

What is probate?

Ever since there has been a concept of “ownership,” there has been a system for transferring ownership to others. The word “probate,” which in the U.S. legal system means the “official proving of a will,” is derived from the Latin, probatum “a thing proved.”

In the probate process, the state officially recognizes an individual as executor (or administrator if the person dies intestate, meaning without a legal will) of the deceased person’s estate, verifies the will’s authenticity, and puts its stamp of approval on the distribution of assets. Even when things go smoothly, it can take a year or longer to complete the probate process and close the estate.

Probate litigation is different and comes into play when a normal probate process breaks down or irregularities or the unexpected is uncovered. A probate litigator is a lawyer who is familiar with the mechanics of wills, trusts, and estate planning law, as well as with the court processes and legal strategies involved in successfully contesting in probate court a will or trust, disputing ownership of certain transferred assets, or challenging the authenticity of a beneficiary’s relationship.

A probate litigation attorney may also represent a client where there are claims that an executor, administrator, trustee, or agent under a power of attorney engaged in misconduct or breach of duty.

What is your situation?

There are numerous reasons a probate process can break down and require litigation to resolve.

• Problems with the will or trust. Did Grandpa leave it all to the housekeeper? One of the most common grounds for contesting a will or trust is the assertion that the signer wasn’t of “sound mind” or was under the “undue influence” of a third party when signing. With regard to the first of these, referred to as the “lack of testamentary capacity,” the legal standard for capacity is quite low. Thus, whether someone had the requisite mental capacity to execute estate planning documents can be a gray area.

The problems that arise with trusts can involve the intended purpose of the trust when created, the lack of clarity in the language describing that purpose, and if that purpose is even relevant in current circumstances. Probate litigation may be necessary to clarify the rights of all concerned parties.

• Fraud and breach of fiduciary duty claims. Sometimes the people entrusted with managing the assets of an estate or trust commit fraud. This can involve a trustee, guardian, executor, and/or power of attorney agent stealing property, misappropriated funds or property, or abusing their fiduciary duty in some other way. In that case, a formal accounting may be requested.

A probate litigation attorney can help a concerned person obtain a court order to force a fiduciary to complete a formal accounting, including a detailing of all financial transactions between the deceased person and the fiduciary. In appropriate cases, a judge will ultimately decide whether to order reimbursement of assets that were paid out.

• Elder exploitation. Sometimes actions like the transfer of property and the changing of beneficiary designations on bank accounts and insurance policies can be successfully challenged through probate litigation. In some cases, the plaintiff must prove that these changes were made under “undue influence.” A separate but oftentimes companion claim is that the elderly individual lacked “testamentary capacity” when the changes were made.
• Prenuptial agreements. Suppose before marriage a couple executed a prenuptial agreement that addressed the handling of assets in the event of a divorce or death. If subject to the prenuptial agreement, the surviving spouse may want to challenge the agreement’s validity. Such a challenger to a prenuptial agreement would naturally be even more motivated where the decedent’s assets grew significantly during the marriage.
• Shared property disputes. Suddenly all the siblings own the lake house. Sometimes when family members own property together, there is a lack of agreement about how the property will be shared. Issues concerning maintenance, taxes, and use are not uncommon and sometimes require a litigation process to resolve — particularly when the property is held by a trustee on behalf of a trust, and thus resolution of the matters involves interpretation of the trust and its terms.
• No will? What happens to property when someone dies without a valid will? Like most other states, New Hampshire specifies that only spouses and relatives of a certain degree of kinship to the decedent inherit under intestate succession laws[1].

The definition of “surviving issue” can become problematic in some intestate situations. Probate litigation may be necessary to advocate for inheritance rights relative to children born outside of marriage[2].

Do you need a probate litigation attorney?

Are you questioning something a family member is doing — or has done — with their estate plan? Are you concerned about the exploitation of an elder, or misuse of assets by a fiduciary? Are you unfairly excluded from inheritance even though you are a surviving spouse or child? Are you the executor or trustee of an estate and have you been asked troubling questions by a family member about your role and expenses that were incurred? If the answer is yes to any of these questions, then you may need a probate litigation attorney.

Complex probate and fiduciary litigation processes take legal knowledge, resources, and considerable litigation skill. Please contact us[3] if you have questions or concerns.

About the Author: Jonathan Eck[4]

Source URL: https://orr-reno.com/what-is-probate-litigation/

---