Estate & Probate Litigation

Estate and Probate litigation is what ensues if your will is not carefully drafted or if one of your heirs is able to contend that you were under the influence of others when you made your will. If you have a large estate, substantial investments or properties, or bank accounts, then you are more likely to be engaged in probate litigation. This is the process by which the Probate Court, following detailed laws that set forth the rights and responsibilities of heirs, executors, and administrators under wills, trusts, and intestate estates.

Under the probate laws governing probate litigation, a Probate Court will identify the assets of the deceased, approve the payment of taxes and other incidental expenses, and determine what the will or the law requires for the distribution of the deceased’s property among the legal heirs as mentioned in the will or pursuant to the laws governing intestate distribution.

In short, probate litigation is generally the same as a “will contest” or a lawsuit “contesting a will.” Although a more carefully drafted will by an experienced and knowledgeable probate attorney can minimize the likelihood of probate litigation, any dissatisfied heir has the right to commence a lawsuit. The most commonly asserted grounds for contesting a will, or challenging the actions of an executor, or obtaining relief from an administrator are:

• Claims of undue influence or duress in the execution of the will or trust agreement
• Contradictory, ambiguous or unclear provisions in the Will.
• Self-dealing or waste of estate assets by an executor or administrator.
• Differences of opinion over guardianships or conservatorships
• Breach of fiduciary duty.
• Failure of an heir or beneficiary to cooperate with the executor or administrator.
• Disputes as to who can act as the executor or administrator.

The lawyers at Howard Law have extensive experience in representing heirs and beneficiaries in will contests and other probate litigation, including guardianships, competency proceedings, and trust disputes. We can properly and fully advise you as to your rights and obligations, as well as the risks and potential outcomes, whether you are acting as the executor or administrator or are an heir or beneficiary who believes that something is wrong with the will or with the actions or omissions of the executor, administrator or other beneficiaries.

Probate Litigation FAQ

What is probate?

Probate is a proceeding in the Surrogate Court for the administration of property that passes by a will or through intestacy.   The probate process serves three primary purposes:

• to make sure any will is valid or to allow an intestacy proceeding;
• to deal with creditors of the estate; and
• to transfer the property to the heirs in accordance with the deceased’s wishes or pursuant to the probate law.

Do all estates have to go through probate?

Whether you need to go through probate depends on the extent of the deceased’s assets, the comprehensiveness of the deceased’s estate plan, and the type of assets to be distributed. Also, if the value of the estate is very small, you may not need to file for probate.

The determination of these issues is far from straightforward. Even if you’re convinced that probate is not necessary, you should speak with an experienced probate attorney to make sure. Although most estates can be handled simply, failing to file for probate when necessary can lead to much more expense and frustration down the road.

When can someone challenge or contest a will?

Generally, an heir may challenge a will for:

• undue influence, such as when someone dictates the terms of the will for the decedent;
• unclear expressions of intent;
• mistake; or
• Fraud.
• Lack of capacity (i.e., the decedent lacked a sound mind);

Will contests can be difficult and expensive. The standard for capacity is very low, requiring even less than is needed to make a contract. Undue influence is also hard to prove unless the person who exercised the influence held a position of trust with the decedent. You should speak with an experienced probate lawyer to determine whether you have enough evidence for a will contest.

How do I determine if I have a basis for challenging or interpreting a will, or questioning the transfer of assets before the deceased died?

Probate litigation is very fact specific. Each case depends on the particular facts involved, and the facts of every case are different. Some of the facts that may substantially affect the outcome of your case include:

• whether the decedent made a change or transfer as a result of the influence of someone on whom he or she depended;
• whether the deceased was dependent on the person who benefited from the change or transfer;
• whether interested persons witnessed the decedent make the change;
• whether the change in the will, the change in the beneficiary designation or the transfer was made shortly before the decedent’s death of the decedent;
• whether the deceased was incompetent;
• whether the deceased received independent legal advice before making the change.

What if the will contains a provision that I will forfeit my rights under the will if I challenge it?

Some wills include “forfeiture provisions,” usually called “in terrorem clauses.” It is possible that you can challenge the validity of such a will, or some aspect of it, and not forfeit your rights under the will but you should seek the advice of experienced counsel to help you understand how that clause may affect your rights. Q: In a dispute between relatives, is it always necessary to file a lawsuit?

What is a guardianship proceeding?

A guardianship proceeding is brought when a person is no longer capable of making financial or personal care decisions for him or herself. Such proceedings are brought in the Probate Court.

To establish a need for guardianship, you must establish, by clear and convincing evidence, that:

• the person is incapacitated, and
• the appointment is necessary to provide for that person’s financial or personal care needs; and

The court may appoint a family member or a professional to serve the guardian, depending on the circumstances. A person who is ordered by the court to be in the care of a guardian is known as a “ward.” The guardian does not assume personal liability for the ward’s debts or assets, but the guardian must always act in the best interest of the ward.

How long does probate litigation take?

Most guardianships are decided in a matter of months, although if it is contested (that is, the proposed ward opposes the guardianship, or the family argues over who will be the guardian), the proceeding may take up to a year.

Most will contests resemble typical lawsuits, except that the option of a trial by jury is not available. These proceedings can take over a year and may require many court appearances as well as mandatory mediation and pretrial discovery.

Hiring Estate Litigation Attorneys

The estate litigation attorneys at Howard Law are here to assist with any estate and probate litigation needs.  Just give us a call at  201-488-4644 or contact us using the form below.