Probate Information Center

Frequently Asked Questions about Probate Litigation

Q: What is probate?

A: Probate is the process by which a court determines whether or not a will is valid or not valid.

Q: What is probate litigation?

A: Probate litigation is civil litigation that is concerned with the issues surrounding the probate process, which primarily includes will validation, estate administration, and asset distribution. Probate litigation, like any other litigation, takes place in a courtroom in front of a judge.

Q: How can I avoid probate litigation?

A: The easiest way, perhaps, to avoid probate litigation is through meticulous estate planning to avoid probate all together. This, of course, must be completed before a person dies. After death, avoiding probate litigation may be next to impossible, especially if the challenger has a legitimate dispute. Even if the dispute is not legitimate, litigation, or pre-litigation, may be unavoidable.

Q: What is a will contest?

A: Contesting a will is the process by which a person tries to have a will invalidated after it has been offered for probate. Not every will is contested. A will that is the most vulnerable generally has some potential flaw or defect that questions its authenticity, either about who wrote it or about the veracity of its contents.

Q: What are the grounds for contesting a will?

A: There exist a wide variety of bases for challenging the validity of a will. Any question that disputes whether the will is the most recent version, was written by the decedent, or contains the actual intent of the author can be grounds for contesting the will. Certain wills are very resistant to challenges.

Q: What is a self-proving will?

A: A self-proving will is written by or for the testator-the deceased person-and signed by the testator before a notary public. The will is self-proving because the witness and seal of a notary public indicate that the testator signed the will under oath. The main concern with self-proving wills is whether there is a later will.

Q: What is a codicil?

A: A codicil is an amendment to a will that modified the will's distribution instructions. A codicil must be written, and it must be dated, witnessed, and signed the same way a will must be. A codicil is not a stand-alone document, because it must refer to a particular will.

Q: What can a codicil do?

A: A codicil can modify a will by adding to or subtracting from the terms and conditions of the will.

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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