What is Probate Litigation?

Christopher John
Christopher John
Businessman with a briefcase
Businessman with a briefcase

Probate litigation is a lawsuit involving inheritance disputes in the administering of an estate. It includes conflicts relating to the appointment of personal representatives or the failure of a personal representative to perform certain obligations. Strictly speaking, probate litigation would only include disputes involving the administration of an estate. Probate attorneys, however, are involved in litigation concerning guardianships, conservators, living wills, healthcare decisions, and power of attorney designations. Hence, many probate attorneys expand probate litigation to include these types of legal actions.

Probate is a legal process used to settle the estate of a person who has died, or the decedent. This means paying debts to creditors and distributing property to heirs. If a person dies intestate, or without a will, then the court will divide property in accordance with the law of the jurisdiction. If the decedent has a will, probate litigation can get contentious when a potential beneficiary challenges the will's validity. When someone contests a will, the court must determine whether the will is valid.

Potential heirs may initiate probate litigation if they are excluded from the will. For example, a person who was a dependent of the decedent may attack the will if the will excludes him as an heir. If the will fails to provide adequately for the care of a dependent, then the dependent may have a valid basis to use in contesting the will. Many jurisdictions prohibit the exclusion of dependents from a will. For example, a minor child from a prior marriage could raise legitimate challenges to a will and demand support if the will excludes him or her or fails to provide adequately for his or her support.

Probate litigation also arises when potential beneficiaries claim that a decedent revoked a will. Revocation of a will means the person who made the will took some type of action to cancel or nullify the will. This action could be destroying the will, making a new will, declaring that the will is no longer valid, or getting rid of the property that was the subject of the will. Probate litigation concerning revocation of a will can become very hostile, because a decision could require the inclusion of people who were not included in the will and minimize or eliminate the inheritance of others.

Aging people sometimes lose the capacity to manage their personal affairs. If a person has not taken action to select someone to act on his behalf, then it becomes necessary for the court to appoint someone to serve as a guardian or a conservator. A guardian or conservator will make decisions on behalf of someone who has lost capacity. These matters also can become contentious and result in legal action when disputes arise concerning the possible exploitation of someone nearing death. Attorneys also often classify these types of disputes as probate litigation.

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