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?
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,
Examples of probate litigation include:
challenge over the validity of a decedent’s
A lawsuit regarding the wording contained in a will or
- 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
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.
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.