Losing a loved one can bring a difficult season for family members and friends. Having to go through probating their estate can make it even harder. This is especially true if you believe you have a reason for distrust in the executor or administrator tasked with administering their estate.
Do you believe you have a right to your loved one’s possessions/assets as an heir or beneficiary? It is crucial to have an understanding of the probate process. This will help determine if you have a probate litigation case.
In a legal case, the person who died is called the “decedent”. Their possessions and assets are called their “estate”. Probate is the process followed for administering the decedent’s estate.
However, the process can vary depending on whether the decedent took care of their estate planning before death. Did they leave a will filed with the probate court designating their executor and beneficiaries? The executor is the individual(s) tasked with handling the probate process. The beneficiaries are the individual(s) who inherit the estate.
If the decedent had an estate plan with a trust, probate might not be required. However, if they left assets not in trust, those assets will be required to go through the probate process.
If assets such as a life insurance policy or bank account have beneficiary designations, these assets will not be required to go through probate. If real property is involved, someone who had joint tenancy with the decedent may avoid probate if the deed states joint rights of survivorship. Real estate can often be transferred with a transfer-on-death deed.
In some cases, individuals do not leave a will, or they may have left a will not filed with the court. In these cases, the probate court will appoint an individual to handle the probate process. This person is called the administrator. The individual(s) who may inherit the estate is called the heir.
Understanding Probate Litigation
Probate litigation becomes part of the probate process if there is reason to contest a will or dispute a trust. It is also important to note that probate litigation can happen while an individual is alive, such as in the case of guardianship when a person does not have mental capacity.
There are many reasons to pursue probate litigation, such as:
- Undue Influence: This scenario usually takes place when a person who has an interest in the will of another uses coercion or duress to influence an individual to will their estate to them. This can often happen as a form of elder abuse or abuse of someone who is mentally or physically ill.
- Testamentary Capacity: In this scenario, the individual may have lacked testamentary capacity. This would mean they lacked the mental ability to comprehend what their will established regarding their estate.
- Fraud: This scenario can occur when an individual is unaware that their will was replaced by a will made by someone else. It can also mean that they were influenced through deceit to alter their will to benefit the individual committing fraud.
- Mistaken Intent: This can take place when an individual mistakenly establishes a will that contains information other than what they intended.
- Issues with Will Execution: The process of executing a will requires the maker to properly initial and sign where legally required. There must be a notary and witnesses present who must also sign. If improperly executed, the will may be contested.
- Breach of Fiduciary Duty: An executor of a will is tasked with ensuring that assets are handled in accordance with instructions outlined in the will. Breach of fiduciary duty takes place when the executor mishandles the assets and/or steals from the estate.
Do You Believe You Have a Probate Litigation Case? Hire an Expert Attorney
We understand it can be a painful necessity to pursue a probate litigation case. The Legacy Lawyers are here to answer your questions and offer you compassion and support by guiding you through the process as smoothly as possible. Schedule a consultation with our law firm today to begin the journey to peace of mind.