Probate Information Center

What to Expect from Probate Litigation

Every case is going to be different, but most cases have similar primary and side effects. Litigation can be stressful among strangers. Litigation between family members can become a nightmare. Families can become fractured, or even more fractured, because of intra-familial litigation. Unlike mediation or arbitration where the goal is often to resolve the issues in everyone's best interest, there are usually clear winners and losers in litigation. Results are not exclusively all or nothing, but winner-take-all is certainly more likely in litigation.

The case may be that the challenger is indeed trying to take all. Perhaps the challenger would rather have nothing than half of something. Perhaps the risk of losing everything is worth the potential to gain everything.

A difference between probate and other civil litigation is that in order to win everything, the challenger must usually prove that he or she is either entitled to everything or that no one else is entitled to anything. In order to prove the former, the challenger must show that it was the final, express intent of the decedent to bequeath all property to the challenger. The only way to do this is to produce a will, or some other operative legal document, that names the challenger as the sole beneficiary. It is entirely possible for a decedent to have intended a single person to receive the entire estate, but that intent must be documented and verifiable. It is not good enough for the challenger simply to aver that such was the decedent's last desire.

Proving that no one else is entitled to anything might be equally difficult unless the challenger has explicit evidence. There are some situations where a challenger could successfully prove that other potential heirs are not legitimate. For example, if a child kills his or her sole surviving parent, slayer statutes may prevent the child from benefiting from the slaying by preventing the child from inheriting the estate. The killer's sibling might take this challenge to court to try to prevent the killer-child from inheriting.

Avenues to challenge the probate process may not be intuitive. Knowing what to do certainly isn't. A probate litigation attorney can help you determine whether you have a case for challenging any part of probate.

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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