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.

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.

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.

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]

  1. intestate succession laws: http://www.gencourt.state.nh.us/rsa/html/LVI/561/561-1.htm
  2. outside of marriage: http://www.gencourt.state.nh.us/rsa/html/LVI/561/561-4.htm
  3. contact us: https://orr-reno.com/practice-areas/litigation/trusts-estates-and-probate-disputes/
  4. Jonathan Eck: https://orr-reno.com/our-people/jonathan-m-eck/

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