Probate Information Center

Probate Litigation - An Overview

Litigation in probate cases is not a first step. An attorney who is competent and experienced in probate and estate administration can facilitate this often difficult process in a timely and effective manner. If you need help in the administration of an estate, call an attorney today.

Before litigating, the survivors must determine whether or not a will exists. A will is a written document that directs the executor. A handwritten will is called a holographic will, the validity of which is often the subject of litigation. A will can also be prepared by a lawyer, signed by the decedent, and witnessed by one or more persons. The latter version is generally much more difficult for any beneficiary or other third party to dispute, because the witnesses and the preparer can easily verify the document.

If a will exists, then it must be probated. During this process, the will is filed with the court clerk in the county where the deceased person lived. The representative must petition the court to ask it to validate the will.

The first opportunity for probate litigation is to contest the validity of the will. Validity concerns usually come in two forms. The first is whether the decedent had actually written or signed the document in question. It is clearly possible for another person to try to forge the document or signature. Such conduct may even rise to the level of criminal conduct in some states. The second concern is whether or not the decedent had testamentary capacity at the time he or she wrote or signed the will.

This second, mental competency issue is more likely perhaps to come into play in the probate process. To have capacity to write a will, the decedent must understand a few basic ideas. The person must understand what a will is, i.e., instructions for what should happen after his or her death. The person must know, at least generally, what assets he or she owns, such as real estate and personal property. And the person needs to know the members of his or her family, as well as other people to whom he or she may desire to bequeath assets.

But beyond those concerns, a will that is written under undue influence should be considered suspect. This can happen in any manner of circumstances, but the fundamental concern is whether the decedent felt so great a pressure from another person to write the will in a particular way that the decedent had no realistic choice but to give in to the influence.

Appointing the Executor or Administrator

If the will is validated by the probate court, then the court will appoint either an executor, if one is named in the will, or an administrator, if an executor is not named. The executor can be anyone. The decedent can name a relative, a friend, lawyer, or anyone else. The court-appointed administrator can also be just about anyone, but the court's primary goal in naming an administrator is to put in place a person who will abide to the decedent's will as nearly as possible and will follow the court's instructions.

This leads to the second point that can be litigated. A potential beneficiary or other third party with a demonstrable interest could challenge the court's choice for administrator or executor. Contesting this appointment constitutes an appeal of the probate court's decision. But the challenge must be able to show that the appointee will in some way fail in his or her duty to execute or administer the estate. Such evidence might be difficult to prove.

Distributing the Assets

The final step involves the executor or administrator carrying out either the wishes of the decedent or the orders of the court. If a will exists and the court validates it, then the executor will distribute the assets among the beneficiaries and creditors. If the decedent died without a will, e.g. died intestate, then the administrator will distribute the assets according to court order, which is generally determined by state law.

But before the assets can be distributed, the court and administrator must determine what in fact the decedent's property was at the time of his or her death.

A will, for example, may provide that a certain piece of real estate goes to the decedent's child. However, the decedent might not have still owned the property at the time of his death. In such a case, the executor cannot give the property to the child because the executor does not have power to do so.

Determining assets might also require litigation. Asset ownership can be disputed. A nephew might claim that his aunt, the decedent, gave him some asset during life. But did she really? Can he prove it? Ownership might need to be litigated. A court might have to decide who owns what.

If you need help in administering an estate, contact an attorney experienced in probate and estate administration to ensure that the most effective administration of the estate.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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