The death of a loved one is a tragedy no one likes facing. Even if you are given time to come to terms with a loved one’s impending death, it can be a very sad, emotional time. What makes this time in one’s life even worse is facing probate litigation.
Probate courts in each state are responsible for dividing assets among heirs after death. Typically, probate is a smooth process when there’s a straightforward will and everything is split among heirs in accordance with the wishes of the deceased. However, there are times when wills are challenged and not everyone agrees on the division of assets. Probate litigation occurs when heirs disagree and a legal battle ensues.
Who Can Initiate Probate Litigation?
Probate litigation can be started by children, wives, ex-wives, husbands, ex-husbands, stepchildren, adoptive children, debtors, or trustees. Probate becomes a very difficult process if the decedent has been married a more than once and did not sign pre- or postnuptial agreements.
Pre- and postnuptial agreements are contracts signed into before or after marriage, respectively, that legally spell out what each person agrees to do with assets should the marriage dissolve or should one party die. Even if someone dies 15 years after their divorce, these agreements help to avoid probate litigation after death.
When Probate Litigation is Likely to Result
Probate litigation is likely to result if the will provides for the division of assets in a way that is uneven among the heirs. For example, if a man had one biological child and one stepchild, and he only left the stepchild 25% of his assets, while leaving his biological child 75%, the stepchild might file a lawsuit in probate court challenging the will.
Probate disputes can also come up if someone is challenging the mental capacity of the decedent at the time he or she signed their will. An heir may challenge the will if they believe it is void because it was signed at a time when the decedent was mentally incompetent and not capable of making sound legal decisions.
Additionally, probate litigation can be used to dispute trustee appointments. If a will results in the formation of a trust, a trustee will be appointed to manage that trust. If it is believed by one or more parties that the appointment of that specific trustee is inappropriate, probate litigation may result.
Creditors may also initiate probation litigation proceedings if they believe they did not receive payment they were due from the estate.
The death of a loved one already has everyone’s emotions running high, and it can be difficult to see clearly. Probate claims are subject to strict statutes of limitations. For that reason, if you believe probate litigation is the right remedy for your situation, it’s important to obtain legal representation and proceed as quickly as possible. Any claims filed after the statute of limitations expires will not be considered by the court.
It is always best to speak with an estate planning attorney to limit your risk of probate litigation.
