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Why Probate Litigation?

Nashville Blog 2019 October Why Probate Litigation?
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Why Probate Litigation?

Posted By David Whittaker, Attorney at Law || 24-Oct-2019

When a will is probated, the probate court validates the will and appoints an executor or personal representative to administer the decedent’s estate. From there, the probate court oversees the executor or personal representative as they pay taxes and other expenses, and distribute what’s left of the estate to the heirs.

Generally, the matters handled during the probate process through the court are not contested. Such matters include paying the decedent’s taxes and debts, selling property, and taking what’s leftover after all debts are paid and distributing it among the heirs. Occasionally though, a legal contest arises over the decedent’s mental capacity at the time the will was drafted, leading to probate litigation.

What is Probate Litigation?

What is probate litigation? It can be a will contest or some other court battle over someone who is still living. For instance, such a contest may be over powers of attorney, living wills, guardianship, and conservatorship.

Examples of probate litigation include:

  • A challenge over the validity of a decedent’s will;
  • A lawsuit regarding the wording contained in a will or trust;
  • A contest over a disinherited adult child;
  • A lawsuit to terminate a trust because it is no longer practical;
  • A contest over the appointment of a specific guardian;
  • A lawsuit to modify or restructure a trust; and
  • A lawsuit filed by beneficiaries against an executor or personal representative because they failed in their fiduciary duties.

What increases the chances of an estate being litigated? In my experience as a probate attorney, the following factors increase the risk of probate litigation: second and subsequent marriages, blended families, dysfunctional families, sibling rivalry, and individuals who have married multiple times without a prenuptial agreement.

Avoiding Litigation with a Prenup

One of the best ways to avoid probate litigation after someone’s death is to have a prenuptial or postnuptial agreement. The reason is that a lot of people mistakenly believe that the separate assets they bring into marriage shall remain separate property when in fact, they commingled separate property with marital assets, thereby converting them to marital property.

Preferably, before a couple marries, they draw up a prenuptial agreement that clearly states which assets shall remain separate upon death, so the surviving family members aren’t left to argue over these matters after their loved one passes away.

Next: Admitting a Will to Probate

For all of your estate planning, probate, and estate litigation needs, please contact my firm by calling (888) 492-4735.

Categories: Probate, Probate Administration, Trusts, Wills, Will Contest, Probate Litigation

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David Whittaker, Attorney at Law

Call Today: (888) 492-4735

David Whittaker, Attorney at Law - Nashville Probate Attorney
1616 Westgate Circle, Suite 127, Brentwood, TN 37027 View Map
Call Today: (888) 492-4735
(615) 289-6284
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