Probate Litigation: A Comprehensive Guide for 2022

Probate Litigation

After someone dies, there is much work family and friends must do with the person’s estate. First, after the initial grief and funeral, the family members, friends, or partners should deal with the practicalities: what they will inherit from the deceased person.

Disputes may arise when previous agreements and arrangements do not align with the last will and testament. For example, its author might have forgotten to include or remove specific sections, or fraudsters or scam artists affected the deceased person’s wishes. Then, the law must regulate disputed issues.

If you want to prove your right to the deceased person’s assets, you should enter the probate litigation process as soon as possible and seek help from a skilled probate litigation attorney. Dive into our up-to-date guide on probate litigation matters that you can rely on across the U.S.

What Is Probate Litigation?

Probate litigation is the legal proceeding where an individual or group of individuals want to resolve inheritance issues, dispute the last will and testament, or get compensation for the damages ill-willed parties cause. 

There are specific definitions for the parties who participate in the probate litigation process:

  • The deceased person or testator – the creator of the last will who died;
  • Executor – the decedent’s personal representative who is not included in the will but they gain control over the will’s validity. The executor can be a responsible fiduciary who manages the trust of the deceased’s family and close people;
  • Heirs – the individuals who are expected to inherit the testator’s assets even if no will exists;
  • Beneficiaries – the persons who are mentioned in the will and granted legal rights to receive the testator’s property;
  • Trustee – the one who has fiduciary duties toward the beneficiaries, meaning they hold the beneficiaries’ rights for the testator’s property or money;
  • Administrator – an individual who becomes in charge of solving probate matters when the deceased person did not create a will.

Each of these parties may obtain a power of attorney, if necessary.

Since probate defines how valid the last wills and testaments are, probate litigation matters include real estate administration based on estate planning law, paying the related taxes and debts, and the assignment of the deceased’s assets among their family members or personal representatives.

If the deceased person did not write and validate a last will, the state law would share the assets among the parties.

Probate Litigation Examples

The common examples of probate cases are:

  • Will contest when the deceased’s relatives or personal representatives question the will’s authenticity and validity;
  • Breach of fiduciary duty when a fiduciary does not act according to the state law;
  • Trust modification or removal when the legal actions of a trustee are disputed;
  • Elective share disputes when a surviving spouse claims his or her legal rights for the decedent’s property assets;
  • Guardianship matters, etc.

Probate Litigation Attorneys

probate litigation

Probate litigation attorneys are legal professionals 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 lawyer who works in an office and handles court paperwork, has meetings with judges, but never goes into a courtroom.

If you have not found a probate lawyer in your state, we encourage you to visit Lawrina Match. This legal platform makes attorney-client relationships more productive and mutually beneficial. Plus, you can ask for a free consultation or an affordable contingency fee on Lawrina Match.

Probate Litigators Versus Estate Planning Attorneys

Estate planning attorneys are the professionals to whom individuals and families refer before a family member’s death. 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 person’s death but do not participate in probate courts.

You will need a probate litigation attorney if you encounter severe real estate disputes. This legal professional can help resolve conflicts between beneficiaries, heirs, and executors in court and prepare all essential legal documents on time.

Probate Litigation Dispute

Grounds to dispute a will

There are solid grounds for contesting a will:

  • Errors made to the will – Let’s suppose you believe your family member changed their will under suspicious circumstances. It can occur 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. Sometimes when a will or an estate plan has minor mistakes that cause problems, and litigation has to address them. But other times, things are a bit more ominous.
  • Undue influence – Undue influence is any situation you believe someone in a power position has taken advantage of your loved one. It happens when the will’s author cannot make decisions themselves, and third parties force them to write a particular will that is not good for the deceased’s family and friends or charities.
  • Mental incapacity – Mental incapacity is the reason to contest a will when your loved one made a change in a time when they lacked the cognitive ability to make informed decisions.
  • Lack of validity – Lack validity is similar to mental incapacity; however, in this case the testator is conscious of making decisions. There, you can dispute a will if the testator failed to write it properly, and it later made the probate litigation process more complicated.

Can I contest a will after probate?

You may dispute a will as soon as possible during the probate process. You can also contest the will after probate if you have enough solid evidence to prove the will invalid. If you do not win the case, you will pay substantial legal costs due to the process complications.

A power of attorney also enables you to dispute the will.

How long does it take to contest a will?

It is best to start disputing the will right after discovering inaccuracies. If you have reached an agreement with the will’s executors, you can receive the resolution of your case in a couple of weeks or months without court interference.

If you could not negotiate with the executors, your probate litigation attorney should take the case to court. Usually, the court hearings last 12 to 24 months after filing the lawsuit, which is why negotiations are the quickest solution to dispute the will.

Do I have to go to court?

To avoid lengthy court proceedings, you and your probate attorney should negotiate on the will with its executors. If they refuse to do so, you have the right to file a lawsuit against them.

7 Steps to Contest a Will

Step 1 – Initial meeting with you

Indeed, you are interested in the fastest case resolution. However, if you act independently, you may end up with lots of serious law omissions. Therefore, a probate attorney will help you prepare all essential documents on time, following state laws. If you are confused over the real estate of the deceased person, it is better to involve an estate planning lawyer in your case.

For your initial meeting with a legal professional, you should prepare all your documents, especially the testator’s last will and testament. If you do not have one, ensure that you have all the documents related to the deceased person.

Step 2 – Time limits and prevention step

Preparations for the first legal consultations and organizing the key documents should not last long. When you have revealed inconsistencies in the will, you should act immediately unless it is not too late to negotiate with the will’s executors.

Remember that court hearings may take 12 to 24 months on average, which proves negotiations are a more practical option to resolve the case. Plus, the time limits for preparing all essential documents and starting your case depend on state regulations.

Step 3 – Factoring in property

Property plays a significant role in probate proceedings. Heirs and beneficiaries are the first to claim their right to the property the deceased person left. To align the will and real estate sharings the testator made, you will need legal advice from an experienced estate planning lawyer. If the testator has not created any will, the estate property arrangements are still possible with an estate planning attorney.

Step 4 – Establishing how the will was made

At this step, you must introduce evidence proving the deceased made the will through wrongful interference. For instance, the dead person was mentally incapable and forced to create a specific will, or fraudulent people fooled them into acts against their self-interest.

The probate court should also know the relationships between the testator and heirs, beneficiaries, the trustee, and the executor. This information will help understand whether the will is accurate.

Step 5 – The deceased’s medical records

Personal documents of the deceased person are vital to introduce in the probate process. Mainly, the medical records can help to solve the last will disputes when, for example, it is critical to proving the circumstances under which the testator created the will.

Step 6 – Discussing your claim with you

When you’ve gathered all documents and statements, your probate litigation lawyer should provide you with the completed claim. Revising it before the court hearings is essential to ensure that all key facts are at your hand.

Step 7 – Letter of claim

This step happens when you could not negotiate with the executor or administrator of the will regarding its invalidity. By letter of claim, you are notifying the other party about the filed probate litigation lawsuit and that the probate court will take on the case.

When To Hire Probate Litigators

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You should consult a probate litigator at any time when:

  • There is a question about what the dead person did with their estate;
  • You are the executor or trustee to the trust of a family member and need a probate litigation lawyer;
  • Your family members or beneficiaries do not trust you;
  • You need help with will contests;
  • You believe that your deceased family member or partner made the last will and testament or trust under suspicious circumstances or while they were mentally disabled; 
  • You believe the executor of the will failed to perform their fiduciary duties or misappropriated funds.

Finding a probate litigation attorney in the state where the deceased died is crucial. Every state across the U.S. has probate legislation or specific details that must be in your probate litigation case.

How Much Does a Probate Lawyer Cost?

A probate litigation attorney can charge you by the hour or with a flat fee.

Hourly fees are a standard contingency fee in legal practice. Each probate lawyer provides a fee that depends on the location and the number of cases he or she is currently working on. For instance, in cities, probate attorneys offer their services for $200 per hour and higher, while in suburban areas, lawyers bill $150 per hour.

Flat fees are on a contingency fee basis when a legal professional is extremely experienced in the probate practice area. Here the payment depends on how complex your legal matter is. A typical probate case may cost $1,500 or more, which covers all the lawyer’s work from A to Z.

However, some probate attorneys can provide a free consultation if your probate case is not complex.

Please note that court fees are not included in legal service fees.

Final Thoughts

Whether you believe there was some incapacity of the deceased and you are the executor, and someone is seeking redress, or someone is contesting any other part of the case, consider contacting a probate litigation lawyer. They can help you pass through the legal process smoothly and help bring fraudsters to justice.

FAQ

Who is responsible for probate?

An executor is liable for the next steps of probate litigation as the deceased person mentioned in the last will and testament. If there is no last will, the probate course chooses the closest person to the dead as an administrator.

Does all property pass through probate?

No. The deceased’s life insurance, joint property that they shared with other tenants during their life, financial transactions made on death accounts, individual retirement accounts (IRA), and assets held in trust do not go through probate.

Should I avoid probate?

Estate planning is an essential job while you are living. If you own a substantial amount of real property but cannot pay it off, you can plan it and avoid probate, thus taking care of trust estate matters. If you are young and healthy, you may postpone this process because you can change your mind and rearrange your estate multiple times.

In the case of a small property, you can rely on simplified estate planning procedures available across the U.S. To align your will with state regulations, you can ask an estate planning attorney who will give legal advice.

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 Sofi for all the details via email at s.ostymchuk@lawrina.com.

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