Probate Litigation: What Lawyers Need to Know

Probate Litigation

When an individual passes away, their assets are distributed to the beneficiaries and the rightful heirs. Probate is the legal mechanism by which an individual’s assets are distributed when:

  1.  They have no will.
  2.  They have a will.
  3.  They have a trust but did not properly fund all of the assets into their trust, leaving some assets subject to probate.

If there is a last will and it determines which estate assets are inherited by which family members or charities, ideally the instructions are so clear that probate litigation happens smoothly. However, there are plenty of situations where disputes arise among family members, beneficiaries, heirs, and even charities where litigation has to take place. Probate litigation is subject to specific rules and deadlines. A good probate litigation attorney will help individuals, executors of a will, trustees, heirs, or beneficiaries navigate this complicated process.

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What is probate litigation?

Probate litigation is the legal proceeding where someone wants to secure property that was given to the wrong person, contest a will or dispute a trust, or seek damages because somebody failed to uphold their financial duty when distributing assets. Each state has different probate laws that dictate the deadlines and paperwork requirements for litigation. 

Probate litigation attorneys

probate litigation

Probate litigation attorneys are lawyers who help people with the court process of contesting a will or addressing a problem with the will. Typically a probate litigation attorney is a trial attorney as opposed to a regular attorney who works in an office and handles court paperwork, has meetings with judges, but never goes into a courtroom. A litigation attorney specializes in the point where mediation, arbitration, and asking nicely simply isn’t fixing the problem. The problem has to go in front of a judge and potentially a jury.

Probate litigators versus estate planning attorneys

Estate planning attorneys are the professionals to whom individuals and families turn before the passing of a family member. The estate planning attorneys are there to expertly create last wills and testaments, estate plans, and trusts. They are the people who get everything in line before the passing of a family member but do not typically get involved in dealing with trials or trial prep.

Probate litigators are there to help when there is a probate dispute, when something isn’t resolving, or when one child or beneficiary believes that the executor of their family will did something incorrectly.

Probate dispute

There are many situations where probate litigation is necessary and it’s not necessarily something for wealthy families only. It can be something for middle-class families who are dealing with sibling rivalry, problems with charities, or discrepancies between what was expressed as somebody’s last decision versus what they actually wrote in the will.

For example:

Rodger passed away last year. Rodger had a full-time roommate who served as an unofficial caregiver for a few years before his death. In the months leading up to his death, he moved in with one of his children and the unofficial caregiver, John, continued to live in the house.

Rodger expressed to John that he could keep the house because of all the work he had done, unpaid, for the last couple of years. Rodger told his children that they, with John’s help, could sell all of Rodger’s belongings and split the profits among the three children and John equally. However, Rodger forgot to update his will so all of the siblings and John knew what his last wishes were but they were not what was expressed on paper.

While the siblings had no objection to this, John decided he did not want to pay the remaining $10,000 on the mortgage for the house, and because he didn’t believe that the siblings would honor Rodger’s decision, he had failed to pay his part of the mortgage for months on the off-chance that he would need that money to settle into a new home.

This decision has resulted in extra fees and complications with the bank and because all siblings were operating under the assumption that John would continue living in the house, the siblings find themselves financially responsible for John’s mistake and potentially for the remainder of the mortgage. 

There are other issues with Rodger’s estate. Rodger owned many carnival type machines like pinball machines, popcorn machines, cotton candy machines, and soda machines which he regularly used for all church functions in his local community. He agreed with the church that they could keep all of these machines if they wanted. Those machines they did not want would go into the pool of items the children and John would sell.

When Rodger first passed away, the church was devastated at the loss because Rodger was very involved, but they were happy to keep all of the machines. A few months later they decided no one wanted the responsibility of storing and caring for the machines so they called the siblings and told the siblings they had only a few weeks to remove all of the machines and do away with them.

During this time, the siblings hired probate litigators to not only follow up with John and to sort out the problems with the bank but to deal with the assets being donated to charities who were suddenly reneging.

Other reasons for probate litigation include:

A will contest

Contesting a will is when you believe that your family member changed their will under suspicious circumstances. This can take place when your husband or father has a stroke and yet, immediately after that stroke, they change their will to give their assets to a caregiver. There are times when a will or an estate plan has simple mistakes or legal emissions that cause problems and litigation has to address these problems. But other times things are a bit more ominous.

Undue influence

One of those more ominous examples is undue influence. This refers to any situation where you believe that someone in a position of power has taken advantage of your loved one. This is the most common reason families will use probate litigators to contest a will. Undue influence is what happens when someone lacks sufficient mental capacity to make informed decisions about their assets so another person in a position of power and authority influences them to make changes they wouldn’t have otherwise.

Mental incapacity

Similarly, mental incapacity is when a change was made by your loved one in a time when they lacked the mental capacity to make informed decisions. If, for example, your grandmother had kidney failure and was intubated in the hospital, primarily unconscious, she would not have been able to make sound decisions about how her assets should be divided, giving her mental incapacity.

When to hire probate litigators


Probate litigators should be consulted any time that:

  • There is a question with what a passing loved one has done with their estate.
  • You are the executor or trustee to the wheel or the trust of a family member and need professional help.
  • You have questions from other family members or beneficiaries about how you are administering an estate, trust, or will.
  • You need help contesting a will.
  • You believe that the last will and testament or trust of your recently deceased family member was made under undue influence or while they were mentally incapacitated.
  • You believe that the executor of the will has failed to perform their fiduciary duties.

Final Thoughts

Whether you believe there was some sort of incapacity as the surviving spouse, you are the executor and someone is seeking redress, or any other part of your individual case is being contested, consider reaching out to a probate litigator. They can help you with the legal process of the court proceedings and the individual state probate process where your case exists.

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Article by Sofi Ostymchuk

Sofi Ostymchuk is a Content Lead and Legal Writer at Lawrina. Sofi manages the content on the blog, communicates with contributors, looks for interesting topics, and creates articles in cooperation with lawyers and law experts. If you would like to be a blogger for Lawrina, you can contact S0fi for all the details via email at

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