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Probate Litigation

What is Probate Litigation?

Ideally, when a family member dies, the will is submitted to probate and the executor or personal representative follows the deceased’s instructions and administers the estate according to the terms of the will. But, conflicts do arise. When that happens, an heir or other interested party may want to pursue probate litigation to correct the problem.

Most probate litigation falls into one of two categories: will challenges and problems with the personal representative or executor.

Will Challenges

The exact grounds for challenging a will differ from state to state. In most states, a will can be challenged on technical grounds, or because the beneficiary or other interested party claims that the will does not accurately reflect the wishes of the deceased.

Technical Will Challenges

A technical challenge is more straightforward. In many states, a will may be deemed invalid if it wasn’t properly executed or is in some other way in improper form. For example, if the will wasn’t properly witnessed, it may not be valid.

When a will is deemed invalid on technical grounds, the remedy is generally to throw out the will entirely. If there is a prior valid will, that will may be reinstated. If there is no valid will, the laws of intestate succession will be applied. If you’re considering a will challenge, it’s important to understand exactly what will happen if the will is set aside. Depending on your relationship to the deceased, the terms of the will in question, and whether there was a prior valid will, a successful will challenge could benefit you or hurt you.

Other Will Challenges

It’s not enough to simply argue that the will doesn’t seem like what the deceased would have wanted or doesn’t match what they told someone. Instead, there are specific grounds–which vary somewhat from state to state–that allow for this type of will challenge. These typically include claims such as:
●  The deceased was forced or coerced to sign the will
● The deceased was tricked into signing the will
● The deceased was subject to undue influence
● The deceased lacked the capacity to execute the will at the time the document was signed
If you suspect that your deceased loved one was the victim of fraud in procuring a will, signed a document they didn’t understand or had been misled about, signed under duress, or otherwise didn’t knowingly and voluntarily execute the will that has been submitted to probate, you should speak with a probate litigation attorney as soon as possible. The deadline for filing a will challenge is quite short in some states, and delay could cost you your opportunity to stop the executor from acting on the will.

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Litigation Involving the Personal Representative

Personal representatives aren’t expected to be legal or financial experts, and they generally aren’t expected to perform perfectly. The fact that the personal representative isn’t handling the estate the way you would isn’t grounds for challenging the personal representative in court. But, the personal representative does have a fiduciary responsibility to act in good faith for the benefit of the estate and the heirs.

The exact grounds differ from state to state. Generally, a personal representative may be challenged if they:
●  Engage in self-dealing, such as selling themselves an estate asset at a reduced rate
●  Are guilty of impropriety, such as diverting estate assets for their own use
●  Falsify information presented to the court or provided to heirs
●  Refuse to take actions required by the will or ordered by the court
In most states, a personal representative can’t be removed simply for not being great at their job. If the failure in performance is significant enough that it is preventing the estate from settling, they could potentially be replaced. The same is true if the personal representative is seriously delinquent and fails to correct that when ordered by the court.

Personal representatives generally don’t have any individual liability in estate matters. But, most states make an exception if the personal representative has acted in bad faith, such as by misappropriating estate assets.

Talk to a Probate Litigation Attorney

Probate litigation can be the only way to protect your loved one’s wishes, or to protect your own inheritance. But, probate litigation can be expensive and time consuming. If you’re considering challenging a will or attempting to remove a personal representative, it’s important to fully examine the possible outcomes and weigh the potential benefits of litigation. An experienced probate litigation attorney can help you make that assessment.

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