Hyden, Miron & Foster, PLLC Law Blog

Tuesday, June 26, 2018

Probate Litigation Explained

What issues often give rise to probate litigation?

Under Arkansas law, when a person dies with property, his or her estate will go through a process known as probate. Probate involves the accounting and gathering of assets to be divided and dispersed in accordance with the decedentt’s will or state law. The probate process can be complex depending on the assets involved, the heirs, and the decedent’s estate plan. When issues arise in the probate process it could create the need for probate litigation.

The Probate Process

As part of the probate process, the named or appointed personal representative will be required to take an inventory of the property of the estate and assign a value to each item. Assets that may be inventoried include the family home, household goods, interest in a business, cash, and debts owed to the estate. As this list is compiled, the personal representative will also need to provide notice of the decedent’s death to all interested parties and creditors. With a full and complete accounting, and all debts paid, the court will assist the personal representative in distributing assets per the terms of the will or state law.

Causes of Probate Litigation

Even when it runs smoothly, probate is an arduous process. At times, disputes concerning the will or probate process will lead to litigation. Common issues that require litigation include:

  • The exclusion of family members from the will;

  • Unequal treatment of recipients;

  • Remarriage, especially when there is not a prenuptial agreement;

  • Fiduciary disagreements;

  • Poor estate planning.

These are just some of the issues that could result in probate litigation. Probate litigation could add months or potentially even years to the time frame for probating an estate. To avoid litigation, ensure your estate plan is well set out and complete. Additionally, talk to your family about your will before your death so that there are no surprises.

Avoiding Probate

You can avoid the time, expenses, and potential complications of probate by skirting probate entirely. In Arkansas, you can consider placing your assets into a living trust. Assets within the trust will pass to the named recipients in accordance with the terms of the trust, without the need for court involvement. Using a trust, or several trusts, you can efficiently pass your assets down to the next generation to avoid probate. Contact us today for more information about planning your estate.

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