By Kent Berk on June 30th, 2014 in
For anyone who has heard the estate planning maxim that failing to plan is planning to fail—and for some families the goal of estate planning is probate-avoidance—there still tends to be some confusion about probate litigation.
First, probate and estate litigation are not the same things as estate administration through probate. Probate “means proving (a Last Will and Testament’s) genuineness in probate court. Unless otherwise provided by statute, a will must be admitted to probate before a court will allow the distribution of a decedent’s property to the heirs according to its terms.”
A Last Will and Testament is supposed to reflect the complete and true wishes of someone in their sound mind who sets forth their wishes for property upon death.
When someone’s wishes are disputed, misunderstood, vague, or otherwise argued over, the probate court hears evidence of the person’s intent.
It is at the point where challenges and disagreements interfere with the court’s ability to administer the will that probate challenge and estate litigation occur.
This article from the Estate Planning author at About.com discusses the most frequent issues, including:
- The will wasn’t signed in accordance with applicable state laws.
- The Testator lacked testamentary capacity to sign a will.
- The Testator was unduly influenced into signing a will.
- The will was procured by fraud.
Now, it is not always the case that disagreements become litigation. Sometimes, the people involved can resolve their disputes through negotiation or mediation. If those methods do not work, then estate litigation before a probate judge will help.
If you have questions about whether probate litigation is the right course of action, please don’t hesitate to reach out to speak to someone at our firm.