Most probate cases involve submitting the will and assigning assets to relatives based on statutory requirements if the decedent died intestate – without a will. However, in some cases, a relative or another person might contest the will or other estate documents. When that happens, that person files a lawsuit in the probate court requesting the court to look at the issue.
If someone filed a case against the estate of a loved one or if you believe the probate court should not accept the will or other probate documents for your loved one, contact France Law Firm today for a consultation.
Duties of Probate Court
Once someone passes, the family members submit the will to the probate court. If the decedent died without a will, a family member must open a probate case with the probate court so that the court can determine the distribution of assets and payment of any liabilities and expenses.
In many cases, even if a person dies testate – with a will – the family must open a probate case. However, if the decedent created an estate plan with trusts and other documents, the family may be able to avoid probate.
The probate court:
- Identifies the deceased’s assets.
- Decides on payment of taxes and expenses.
- Distributes the property among the legal heirs if the decedent did not leave a will and pursuant to the estate plan if the decedent left a will.
Although the probate process might seem easy if someone does not file against the estate, you should always retain an estate planning attorney. The attorney can help you through the probate process, reduce errors that delay the process, and are already familiar with your case should someone file probate litigation.
The estate planning attorney is also already familiar with your case in the event that you must litigate against the executor or a trustee.
What is Probate Litigation?
Anyone can file an objection to any part of an estate plan. The probate litigation can be over issues including guardianships, powers of attorney, conservatorships, living wills, and trusts. When someone files a probate litigation case, he or she is challenging documents contained in the estate plan. Some examples of probate litigation include:
- Challenging the will’s validity.
- Challenging the construction of an estate document, including the will, a trust, and power of attorney or other estate documents.
- Challenging the interpretation of an estate document.
- Contesting a guardian named in the will and / or appointed by the court.
- Contesting the guardian’s conduct in handling the estate.
- Terminating a trust.
- Beneficiaries suing trustees and/or executors for failing to act within the law or pursuant to a legal document.
Your loved one’s estate is more likely to see probate litigation in cases of:
- Sibling rivalry.
- Dysfunctional families.
- Second marriages.
Avoiding Probate Litigation Among Family
You reduce the risk of probate litigation by creating a prenuptial agreement when you are entering into a second or subsequent marriage. Once you marry someone, any property you own usually becomes marital property. Even if you try to keep the property separate, it could easily become marital property through your actions. Unknowingly converting property to marital property is much easier than keeping it separate.
Nuptial agreements dictate ownership of assets and prevent family members from fighting over them. You can also create a life insurance trust for children of different marriages to help reduce the risk of probate litigation.
Other Risks for Probate Litigation
During the probate process, creditors can make claims against the estate. When an executor contests a creditor’s claim, it creates probate litigation.
Additionally, if an estate plan or will omits a family member or treats one child better than another, the decedent opens his or her estate to probate litigation. Fiduciaries who do not communicate properly, procrastinate or are otherwise untrustworthy can trigger probate litigation.
Contact France Law
Even if you do not expect probate litigation to delay the administration of your loved one’s estate, you should contact an estate planning attorney to help you through the probate process. Probate is often complex, and one mistake sends the case back to the end of the line. That means additional weeks of waiting for the probate court to process the will and/or estate plan.
