Most know that probate is the legal process of transferring the ownership of an estate to a decedent’s heir. What most don’t know is the many types and nuances of probate litigations. Being aware of the different types, and the benefit of legal assistance in every case can help you to prepare adequately for the probate process if you’re facing concerns. Probate litigation refers to any disputes that may occur during the process of probate.
What are the types of probate litigation?
There are many different types of probate litigation. We cover the most common concerns below:
1. Will contest
Will contest occurs when the validity of a will is challenged. Will contests may occur if there are sibling disagreements over the ruling or will, second marriages, or dysfunctional families involved in the probate process. While will contests are not exclusive to this demographic, they are certainly the most common if any of these variables are present.
Below are some of the most common motives behind will contests:
- Undue influence: Will contest may happen if there is evidence that suggests the person who signed the will was under pressure to sign it from a third party.
- Improper execution: A will is a legally binding document and the executor is expected to comply with formalities. Failure to meet these requirements could result in a contested will. Mistakes, albeit unintentional, can also deem the will invalid.
- Capacity: The will can be contested if third parties have reason to believe that the person didn’t have the mental or physical capacity to understand the significance and consequences of determining terms of probating the estate at the time of the signing of the will.
- Financial maintenance: This is when a person who was independent of the decedent feels that the will did not make adequate provisions for them.
- Fraud: If it is suspected that the signature is fraudulent, the will may then be challenged.
- Will interpretation: If any language in a will seems vague or ambiguous, the executor may litigate the meaning of the will through a construction action. For example, group gifts or conditional gifts may be considered too ambiguous to simply execute.
If you’re dealing with a will contest, it’s recommended that you seek legal advice. An attorney can tell you whether or not you have the ability to adequately argue your claim. However, there are important factors to consider before contesting a will.
For example, if there is any question that the will is valid, probate is stalled immediately. This is because until the probate court knows the true heir of the estate, they cannot judicially administer assets.
You may also want to consider how will contest could cause interpersonal strain or may conflict with other litigations. It can be challenging for families to go through, so you may consider how strong your claim is before seeking help for will contest. You may also determine if the effects are worth delaying probate or affecting your familial relationships.
2. Creditor claims
Creditor claims are the next most common cause for probate litigation. Creditor claims can be made when a person dies intestate and experienced financial strain prior to their death. Creditors will have six months to make a claim against an estate, in most cases. The executor may be held liable for the claims. An attorney can help you to determine your next steps, and conduct a liability risk assessment.
Unknown debts are one of the bigger risks of becoming an executor of one’s estate. It’s important for all executors to consider the financial risks and consequences of holding this role.
Even if you are not held liable as an executor, you may still be liable for repayments until the estate has been fully distributed. You may need to recover the outstanding debt. However, you are able to challenge creditor claims in probate court.
When probating an estate, it’s good to be proactive. If you act quickly, you may minimize the risk of being taken to court for any outstanding repayments. If you are not determined to be liable, it is likely that the responsibility will be passed on to the heir of the estate.
3. Breach of fiduciary responsibilities
The last main cause we are covering in probate litigation is the breach of fiduciary responsibilities. These include maintaining the upkeep of the estate, wasting the estate (i.e. mishandling the estate), and not distributing the property and assets in accordance with the will. As an executor, you must always think in the best interest of the estate. Failure to do so may result in your removal. You may also face financial repercussions from any damages imported to the estate.
Ascent Law can assist in probate matters in the state of Utah
Probate litigations can be challenging for families. Contacting the experts at Ascent Law is your next best step. Our skilled team has years of success in the field and is able to sit down with you and determine your next right step. For more information, please give us a call at (801) 432-8682.