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Biddle Law Estate Planning Blog

Monday, November 13, 2017

What is Probate Litigation?

You may assume that estate planning is a non-confrontational process, and it usually is. When someone creates an estate plan, the process of developing it deals only with one (or potentially two) person—so there is little occasion for conflict. When loved ones actually take steps to fulfill a decedent’s wishes after they pass, fights are much more likely to arise. 

Family members may take issue with a variety of topics related to an estate plan. When those conflicts arise, interested parties can challenge estate planning tools by initiating probate litigation.

Probate litigation also encompasses issues that deal with aging and disability, in addition to death. It can deal with conservatorships and guardianships as well as probate-specific conflicts. 

The Difference Between Regular Probate Procedures and Litigation

Nearly every will must be probated through the court. The court will take steps to identify assets, decide how to pay taxes and other obligations, and distribute property according to the will. Most of these matters will be uncontested. When conflicts arise, they are addressed within this larger probate matter by the same judge that deals with the probate matter as a whole.

Common Examples of Probate Litigation

Probate litigation can come up in a wide variety of situations. Some of the most common examples of probate litigation include:

  • Whether a guardian should be appointed
  • Challenging wording or interpretation of wills or trusts
  • Contesting the validity of a will as a whole
  • Modifying a trust 
  • Dealing with conflicts between a beneficiary and a fiduciary
  • Claiming undue influence

Litigation can arise in any number of situations. You should talk to a probate attorney about your potential legal options if you feel that some portion of the probate process is unfair or unreasonable. 

Situations That May Result in Probate Litigation

Many probate litigation matters are between family members. Emotions often run high in these cases, which can make the conflict run even deeper. Internal issues like sibling rivalry and second marriages are more likely to result in probate litigation. Families that do not communicate often are also more likely to assert a litigated claim. 

When the decedent creates a “non-standard” estate plan, that can also result in conflict. “Non-standard” plans leave out key members of the family, such as children or spouses. Leaving property to non-family members or treating children differently may also give rise to hurt feelings that may result in litigation. The larger the estate, the more likely that it will result in probate litigation as well. 

Probate litigation can also involve family members attempting to recover property or funds from an outside party as well. Third-parties who are put in a position of trust, such as salespeople, financial planners, and caregivers, can sometimes take advantage of those who cannot defend themselves due to advanced age or health issues. Family members may need to deal with these problems through probate litigation.

Finding an Experienced Probate Attorney

Regardless of your particular type of conflict, you should speak with an experienced probate attorney who is comfortable in the courtroom. Many estate planning attorneys are unwilling or unable to deal with probate litigation. Call today for more information on how Biddle Law can help. 


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