What is Probate Litigation?
Probate Litigation is when there is a dispute during the probate process and, as a beneficiary, you need to protect your interest in the estate.
First, let’s briefly review the Probate Process. Probate is the process whereby a decedent’s (person who has passed) Will is filled with the court and the State recognizes a person to manage the deceased’s estate. Wills name Executors or Personal Representatives. Otherwise, if there is no Will, the State selects an Administrator.
Probate begins when the Executor submits to the court the decedent’s Will and valid death certificate. When no Will exists, Probate begins when an interested party Petitions the Court to be an administrator – the court will then issue Letters of Administration. If the decedent had a valid Will, the court will issue Letters Testamentary. Both Letters of Administration and Letters Testamentary give the Personal Representative the authority to act on behalf of the estate, and “marshal” the estate. That is, gain access to financial accounts and property.
Probate Litigation takes place when an interested party believes that a wrong was done at some point in this process, or if there a nefarious dealings during the administration of the estate. At this point, it is important to retain an Estate Litigation Attorney and file the appropriate petition.
Probate Litigation Examples
Probate Litigation takes place during this process if:
Will Contest: An interested person wishes to challenge the entire Will’s validity. Go to Will Contests to learn more. This is usually based on the drafter of the Will not having capacity to complete a Will or if the drafter was under undue influence when deciding their beneficiaries.
Administrator Appointments: If there is no Will and the family cannot agree on who should serve as Administrator. Disputes over who serves as Administrator may result in a contested hearing and having a judge decide who should serve as personal representative of the estate. Having an experienced Probate Litigation Attorney is vital. The judge only allows a short time for evidence and testimony. Improper procedures and evidentiary failures may result in the wrong person may gain control over the estate.
Executor Fee Disputes: When an interested person believes the personal representative has overcharged the estate. Go to Executor Fees Disputes. An experienced Probate Litigation Attorney can follow the procedures and evidentiary rules to provide the judge with the evidence and testimony to allow the judge to demand fees returned.
Formal Accountings: When an interested person, usually a beneficiary, believes the Executor is not providing adequate information or has engaged in self-dealing. Go to Formal Accountings.
Guardianship Disputes: Though not technically a Probate Litigation matter, Guardianships are often thought of as probate matters as the same court hears them as many other Probate Litigation matters. See Guardianship Disputes.
Trustee Removals: When the Trustee that is appointed by a Revocable Living Trust, or if a Will forms a Testamentary Trust, a dispute over the Trustee’s appointment is Probate Litigation. Reasons for their removal can be for self-dealing, lack of administration, abuse of discretion, excessive fees paid, conflict of interest, and others. See Trustee Removal.
Experienced, With Reasonable Prices, We Make Probate Litigation Easier.
If you have any questions about Probate Litigation or any other estate planning topics, please contact us to schedule a free consultation. At Vancouver Wills and Trusts we focus on estate law. With years of experience we will explain complex estate planning techniques clearly and concisely. We make it easy for you to understand estate planning so you can make the best decisions for yourself and your family.