Written by AskTheLawyers.com™
Written by AskTheLawyers.com™
What is Probation Litigation?
Ask a Probate Litigation Attorney for Legal Advice
Probate litigation refers to any contested issue that arises when deciding how the contents of a will or trust are to be administered after someone passes away. A will is a legal document detailing how someone would like their assets and/or possessions to be distributed after they die. A trust is a legal relationship in which one party or trustee is given power over assets/property which are to be distributed to a beneficiary in a specific way.
It is not uncommon for family members to contest a will or trust after the owner is deceased. This is especially common in families with difficult relationships who are unhappy with the contents of their loved one’s will or trust. The intention of the probate litigation is to ensure that the wishes of the deceased are carried out in as accurate a way as possible. However, questions may arise concerning what the deceased intended or would have wanted in the current situation rather than the one in which the will was written. When these situations arise, it’s important to involve a probate litigation attorney.
Probate litigation can be complicated and the effects impactful. Due to the complexity of the law on assets and wishes of the deceased, it’s a good idea to bring a lawyer into the situation as soon as possible if it seems like there may be issues interpreting or carrying out a will or trust. Some kinds of probate litigation cases are more common than others, and a probate litigation attorney can help make short work of what could otherwise be a grueling and arduous process.
Common Probate Litigation Cases
Probate litigation tends to be a touchy subject for the loved ones of the deceased. In these situations it is not uncommon for emotions to run high, often acting as a barrier to productive conversations. This is another reason it’s a good idea to involve a third party who can help take emotion out of the equation to make sure that the deceased’s wishes are carried out as requested.
Let’s go over some common probate litigation cases:
- Challenges to the validity of the will or other relevant documents. This may be necessary when the validity of the will is under question for any reason. Common reasons for this include suspicions that the deceased was unduly influenced leading them to form their will in a way they otherwise would not have.
- Challenges regarding the interpretation of the language in the will. A common issue in determining how the contents of a will or trust are to be carried out is the actual interpretation of that content. It can be difficult to interpret the exact meaning of the language used in these documents, so if there’s any question, it’s a good idea to involve an expert.
- Challenges regarding undue influence one party may have had over the deceased in forming the will, which should not have been an influencing factor.
- Challenges regarding the mental capacity of the deceased if it was suspected to be compromised prior to forming the will.
- Removal of a fiduciary who does not accurately carry out the directions of a will. A family member of the deceased is often named the fiduciary or executor of a will; however, if the fiduciary is not carrying out the will in accordance with the deceased’s wishes, it may be necessary to involve a probate litigation attorney to have them removed.
- Handling a deceased’s assets when they pass away in the intestacy, or before writing a will. In these situations it is the job of a probate court to decide who should receive what part of the deceased’s asset.
The Differences Between Wills and Trusts
It’s important to remember that wills and trusts are not the same thing, nor are they handled the same. For example, while both can be contested or challenged and litigated, only wills are in the public record. This means that if a will is contested and on its way to probate, there will be a public notification regarding the event.
However, if a trust is contested, the matter is considered private and it is unlikely that the public will be informed. Additionally, it is far more common for a will to be contested than a trust; many trusts include a clause stating that if any beneficiary challenges the document, they will forfeit whatever had been assigned to them. The best way to recognize the difference between a will and a trust is to think of a will as a way of deciding how a person’s assets will be distributed after they pass, while a trust is considered the actual owner of the assets contained therein.
To or contest a will or trust, it is imperative to involve a probate litigation attorney. The law involving these kinds of estate plans is extremely complex and the consequences can be significant if one or more parties are underrepresented. To learn more about probate litigation or for help contesting a will or trust, seek legal counsel from a probate litigation attorney.