Hyden, Miron & Foster, PLLC Law Blog

Monday, March 16, 2020

What Litigation May Arise During Probate?

Probate involves the administration of a deceased individual’s estate. For instance, the deceased’s assets will be identified, there will be payment of taxes and other outstanding debts, and there will also be the distribution of the deceased’s assets to the legal heirs as provided in the will or by the State’s intestacy laws. While most of the time things proceed smoothly, albeit slowly, in probate, there are other times when contention arises and results in litigation that will need to be resolved before the probate process can proceed. It is important to note, however, that should you ever need to challenge something in the probate process, you must do so in a timely manner. There are statutes of limitations in place that will bar your claim should you wait too long to bring it.

What Litigation May Arise During Probate?

When the estate of a deceased individual enters the probate process, emotion can often run high. In the wake of the loss of a loved one, things can get very personal very fast. There is also the fact that sometimes family members and loved ones may be surprised, offended even, by the contents of the deceased’s will. Things like a person being disinherited can lead to some big issues and litigation may ensue.

Some of the more commonly litigated issues in probate include:

  • Challenging the validity of a will or trust
  • Alleging a breach of fiduciary duty
  • Termination or modification of trust terms
  • Seeking the removal of a trustee or executor
  • Interpreting the terms of a will or trust

There are certain cases that seem more vulnerable to probate litigation arising. When there is a great deal of contention among family members, litigation is more likely to arise. Family members and loved ones can be pitted against each other in everything from the validity of a will to whether or not the executor of the estate is upholding the requisite fiduciary duties.

Probate litigation is also more commonly seen when there are second or subsequent marriages to account for. If the deceased was married more than once, especially if there are children resulting from one or more of the marriages, things can get complicated quickly and litigation may ensue as everyone tries to fight for their share of the estate. Of course, in these cases, a valid prenuptial or postnuptial agreement can easily help avoid these issues. The agreement can outline what property will be considered marital and what will be considered separate. Such designations can help quash fights about who is entitled to what later on in probate proceedings.

Trust and Estate Administration Attorneys

Probate can be rife with emotions and hurt feelings. This is often a recipe for impending litigation. If there are any issues in the estate of a loved one that are likely to result in litigation, go to the trusted attorneys at Hyden, Miron & Foster. They are here to help answer any of your questions and can act as legal representation on your behalf. Contact us today.


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