Probate litigation covers many different topics which can arise during the course of administering an estate. If litigation becomes necessary or occurs in an estate, you should seek appropriate representation with an attorney with litigation experience in addition to experience with probate itself. Below are some of the more common occurring areas of probate litigation.
- Was the Last Will and Testament presented to the Probate Court in fact the most recent one executed by the deceased?
- Did the deceased execute the Last Will and Testament freely and willingly with no undue constraints or influences?
- Was the deceased of sound mind when executing the Last Will and Testament? (Was the deceased incompetent or suffering from dementia or some other form of senility)
- Does the Last Will and Testament contain the deceased’s wishes?
- Were they unduly influenced to write the Last Will and Testament a certain way (i.e. a child forced the deceased to give them more in their estate and/or leave out another heir)?
Breach of Fiduciary Duty by the Executor/Administrator
- Failed to perform statutory duties (gather and preserve assets, pay bills correctly, dispense assets according to the Last Will and Testament or by statute if there was no Last Will and Testament.
- Selling assets for less than fair market value or giving them to heirs or other individuals not designated to receive the asset as set forth in the Last Will and Testament or by statute if no Last Will and Testament.
- Disposing of assets as worthless without verifying same appropriately or keeping an heir from receiving it due to bias towards that heir by giving it away or selling it to someone else.
- Stealing money, securities or other assets from the estate, or converting the asset for personal use, or paying personal bills with estate funds.
- Failing to verify if an asset should be part of the estate.
- Unnecessary sale of an asset. For example, selling furniture an heir wished to receive as part of their share of the estate.
- Selling real estate without authority either by the Last Will and Testament or by Court Order.
What did the Testator/deceased mean to say in their Last Will and Testament?
- Do all of the heirs understand what the Testator/deceased meant when describing an asset or giving directions as to what is to happen to an asset? If not, it may be necessary to have the Court interpret or decide what the Testator/deceased meant or intended in their Last Will and Testament. This problem tends to occur in self-prepared/online documents prepared by the Testator/deceased. The Court would hold a hearing with testimony from all interested parties and then render a decision. To prevent this issue, you should consult with an attorney and have a properly prepared Last Will and Testament created to avoid unclear or confusing wording/terminology.
Who is an heir?
- Think about what happened when Prince died without a Last Will and Testament. There were close to 300 individuals that came forward claiming to be related to him and, therefore, heirs to his estate. If there is no valid Last Will and Testament at the time of your death, this leaves open the opportunity for someone to come forward and try and claim part of your estate, even if you did not want them to receive anything from your estate. By having a properly prepared and executed Last Will and Testament, you can eliminate this issue.
Spouse/child left out of Last Will and Testament
- You may have executed a Last Will and Testament prior to marriage or prior to your children being born, but never updated same after these life changing events, or you have never executed a Last Will and Testament. If your spouse is left out of the Last Will and Testament, they will only be able to receive one-half of your personal property and one-third of your real estate after taking the appropriate action. Without a Last Will and Testament, your spouse is fourth to inherit your estate after children, parents and siblings. Furthermore, if you do not have a Last Will and Testament or your Last Will and Testament does not have provisions for your children, there will be no directives regarding the appointing of a Guardian if they are still a minor at the time of your death, or how their share of your estate should be handled (i.e. held in trust for a period of time, used towards education, etc.)
By having your Last Will and Testament properly prepared by an attorney who practices in the area of estate planning, and choosing your executor/representatives wisely, you can avoid these mistakes and issues that can arise.