Probate Litigation: What to Expect and How It Will Happen

The Process of Probate Litigation

Probate litigation combines features of both a probate proceeding and a civil law action. If an individual with proper standing contests a will submitted for probate, the probate judge will review the claims. If the probate judge finds that there is an issue relating to the will's validity, the probate judge will send the case to trial.

Probate litigation takes place in civil court. A civil case regarding a will proceeds like any normal court case, in which lawyers for each side present evidence, select and question witnesses and put forth exhibits before the judge or jury. The burden of proof on the individual or individuals in a will contest is onerous because a will contest depletes money from the estate of the deceased. A will contest is also seen as an upset to the time and effort the deceased put into estate planning.

Probate Laws Vary by State

The laws that apply to the probate of a will depend on the state in which the will is being probated. Some states have created their own probate laws, while others follow a version of the Uniform Probate Code (UPC). The UPC was initially created based on concerns that probate laws lacked uniformity across the country; also, there was an increase in complicated estates (e.g., multiple marriages). The UPC covers several topics, including the creation of wills, estate administration, guardianships and conservatorships, non-probate transfers and trust administration.

Legal Remedies in Probate Litigation Are Limited

It is important to understand that one cannot contest a will by asking for "specific performance." Specific performance is a remedy provided in certain civil cases, where one party sues for a specific result. In probate litigation, the court is able to provide one of three remedies: (1) the will is valid and shall be probated as is; (2) portions of the will are invalid, and the valid portions shall be probated as is, while the invalid portions will follow the state intestacy laws (as if the testator had died without a will), if necessary; or (3) the whole will is invalid and the estate will be probated according to state intestacy laws. The repercussions of any of these results can be overwhelming. A knowledgeable probate attorney can guide you through this process and help you understand the full implications of the results.

The Non-Legal Consequences of Probate Litigation

Probate litigation may cause immense stress to family members and friends of the deceased, which can lead to permanent rifts within families. The amount of time, energy and money spent on litigation can also be burdensome. The undertaking of litigation to determine the validity of a will is a difficult decision to make and should not be entered into lightly.

Speak with an Attorney

Avenues to challenging the probate process may not be intuitive. A knowledgeable probation litigation attorney from Sheryl E. Fuhr & Associates can help you determine whether you have a case for challenging any part of a will.

The probate litigation process is similar to other civil litigation. A knowledgeable and experienced probate litigation attorney can assist you at every stage of this process. Contact an attorney before deciding to move forward with your probate litigation claim.

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Will Contests

Who May Bring a Claim?

To contest a will, you must show that you have standing to do so, as well as a claim that the will could be invalid. Someone who has standing is a party who suffers a current or possible future impairment or injury if the will is upheld as valid. This includes anyone who has something to gain if:

• The current will is held invalid and a prior will is revived
• The will is denied probate, thus invoking more property into testamentary trusts
• The deceased had passed away intestate (without a will)

When someone dies without a will, certain relatives are automatically designated as heirs. These relatives include the spouse, children, grandchildren, parents, siblings and grandparents of the deceased.

Other individuals who may bring a will contest include:

• The spouse, who is claiming more than his or her elective share
• The state, who would stand to take everything if an individual died intestate and without heirs
• The administrator or executor of the current, or a prior, will
• Individuals who have contracts with the deceased that are contrary to the will
• Assignees of heirs or beneficiaries
• Creditors

On What Grounds May a Claim be Made?

Even if you have standing to bring a claim, you must also be able to show that the will that was admitted to probate may be invalid. There are several grounds on which to claim invalidity:

The will failed to meet all formalities: to create a valid will, the drafter of the will must meet all formal requirements. Each state has its own formalities, but most agree that a will must be properly signed, attested to and witnessed.

The testator lacked the mental capacity to create a will: the validity of a will depends on the mental capacity of the testator (the person who wrote the will and has died) at the time of the creation of the will. The testator must have known of his heirs, known the nature and extent of his estate and been capable of creating a will that rationally distributed his estate. There is a presumption that the testator had capacity, which places the burden of proving incapacity upon the challenger of the will.

The will was revoked by the testator: a will can be revoked by an act of the testator (such as burning it or ripping it into pieces); by the creation of a new will that properly states revocation of a previous will; or by a change in circumstance prior to the testator's death (such as divorce).

The testator was subject to undue influence: another method of challenging the validity of a will is to claim that the testator was subject to undue influence. Most states have not yet fully defined undue influence, but all have identified certain elements that must be shown. It is unnecessary for the individual who allegedly unduly influenced the testator to be a direct beneficiary under the will.

Contact a Probate Litigation Attorney

For advice and information on probate litigation and contesting a will, contact Sheryl E. Fuhr & Associates. A kowledgeable attorney from our office can take the worry out of estate administration.

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How to Avoid Probate Litigation

While you cannot keep relatives from fighting after your death, there are several tools you can use during your lifetime to help your estate avoid probate. A knowledgeable and experienced estate planning and probate attorney can help you make the most of your estate plan.

Proper Estate Planning Is Essential

The primary way to avoid probate litigation is to plan early and plan carefully. No strategy can guarantee that your heirs or beneficiaries won't end up in litigation. Every legal tactic can be challenged. However, careful planning can help to ensure that your wishes will be carried out to the fullest extent possible.

Avoid Probate and You Can Help Deter Probate Litigation

One way to deter probate litigation is to create an estate plan that allows most if not all of your estate to by-pass probate. To create such a plan, work with a lawyer to implement tools engineered specifically to keep your property and assets out of the jurisdiction of the probate court. Some of these vehicles include:

• Trusts
• Joint tenancies with rights of survivorship (for assets including real estate and bank accounts)
• Beneficiary designations (for assets including insurance policies and retirement benefits)

These tools create rights in designated people that can be acted upon without having to go through the probate process. The probate court does not have to approve or validate these instruments as it would a will. For example, when two people own a house in joint tenancy with rights of survivorship and one of the owners dies, the property is not included in the decedent's estate. Instead, the surviving owner becomes the sole owner. However, these types of probate avoidance tools may not be the best fit for every type of estate. It is important to discuss them with an experienced estate planning attorney to learn more about their advantages and disadvantages.

Save Your Family the Cost and Stress of Litigation

If you cannot avoid probate by using the tools described above, then a carefully planned will may save your family and beneficiaries from the cost and stress of having to go through the litigation process. Dealing with the death of a loved one is stressful enough without the addition of litigation.

Your estate planning should include a determination of who will get what. To simplify the process, you might want to document a complete inventory of all of your assets and properties. It is not necessary that you have a plan prepared before you consult an attorney. The benefit of speaking with an attorney is to make sure that every issue is considered and accounted for in your plan.

An important matter to keep in mind during your estate planning is ensuring your loved ones are aware of your wishes. Probate litigation can arise out of confusion or concern that what you put down on paper was not truly what you wanted. Full and frank disclosure with your loved ones may help prevent later challenges to your will.

You Cannot Predict the Future

All of the planning in the world cannot guarantee that your estate will avoid litigation. A relative might dispute the validity of your will. A creditor might contest the rights of your beneficiaries under alternative trusts and contracts. But proper planning and avoidance strategies that you and your attorney devise can go a long way to protect your estate, family and beneficiaries from the cost, emotion and hassle of probate litigation.

Consult an Attorney

If you are contemplating ways to avoid probate litigation, contact an attorney experienced in probate and estate planning at Sheryl E. Fuhr & Associates, to discuss your options.