How to Avoid Probate Litigation?

Avoiding the Avoidable

We all know the Disney Princess story. After the princess’ mother passes away her father remarries. She now has an evil stepmother and a slew of bumbling step-siblings with dollar signs in their eyes. She is certain that wrongdoing, undue influence, and manipulation are happening.

While we don’t live in a fairytale with clear cut good and evil, we do live in a day and age where familial dynamics are complex and intertwined. Multiple marriages, sibling rivalries, and dysfunctional families are some of the key ingredients that can lead to probate litigation. Add some dollar signs and this could be the juicy plot line for a daytime soap opera.

Conflicts over trusts and estates can appear from nowhere; families may realize they have been deceived late in the game and unknown circumstances may appear from the shadows. Life can be messy, but sadly, so can the afterlife. We all have family-drama that continues on even after the passing of a loved one and sometimes this gives rise to probate litigation.

In this article, we will define probate litigation and explain how you can act now to avoid it.

What is Probate Litigation?

Probate litigation occurs when a lawsuit has been filed with the probate court disputing the administration or distribution of a decedent’s estate.

Probate is the legal process of transferring titles out of the name of the deceased to the rightful beneficiaries and heirs. This process also includes settling final debts with the supervision of the probate court. Hiring an attorney ensures the probate process is done properly.

However, as we discussed earlier, complex family dynamics can make this process litigious and not as straightforward as it may appear.

What if something goes wrong?

Disputes arise around deceit, greed, and/or miscommunication. Generally, probate litigation arises when an interested party believes that a wrong was done during the probate process or before a loved one passes. In many cases, a trust or will does not work as intended. Sometimes the will or trust was created by someone who lacked capacity. Or in other instances, someone was coerced or unduly influenced by a loved one or confidential relationship with them.

Types of Probate Litigation

Some common examples of where probate litigation can arise include:

  • Guardianship and conservatorship appointments;
  • Challenging the validity of a will;
  • Vagueness in the language of a will and trust;
  • Claims of undue influence and lack of capacity;
  • Multiple conflicting trust amendments or restatements;
  • Suits against trustees or fiduciaries for failing to act according to the terms of a trust

If you are faced with a contested probate matter, a probate litigation attorney may be necessary. Contested probate matters require the judgment and oversight from the probate court to resolve a dispute.

Hiring an experienced estate planning attorney avoids this mess altogether by identifying potential litigation issues and designing a plan that avoids them in the future.

Tips to Avoid Probate Court

Probate court can amplify emotions and even destroy familial relationships. While not all contested estate and trust matters can be prevented, developing a comprehensive estate plan reduces the potential need for probate litigation.

What You Can Do Now

  1. Create a Revocable Living Trust and a Last Will and Testament
  2. Name Financial and Medical Powers of Attorney
  3. Establish Joint Ownership with Rights of Survivorship for real property, such as a house.
  4. Designate beneficiaries on all retirement and non-retirement accounts (i.e. Pay-on-Death accounts)
  5. Discuss your concerns with an experienced attorney who also handles contested probate litigation matters

When creating your estate plan hire an attorney who not only drafts plans but also takes on trust administration and probate litigation. In my experience litigating probate, there is valuable knowledge in rectifying the mistakes and pitfalls of other attorneys. Because we do both at Dana and Associates, we can create better wills and trusts for our clients.

Schedule a complimentary Personal Family Legal Session today to develop your own personalized, comprehensive, and effective estate plan and make sure your family and assets are protected!