Probate or Estate Litigation

What is Probate Litigation? Probate is the formal process by which a decedent’s will is submitted to the court and authenticated. Meaning the court accepts, “yes, this is a will. It’s properly executed.”

Personal Representative

Next, a personal representative is established and is overseen by the court because the personal representative gathers all of the decedent’s assets. The personal representative pays whatever debt remains, and disburses the decedent’s assets pursuant to the terms of the will.

Probate or estate litigation takes place within probate:

• Probate is a will or estate that is filed with the court.
• Someone petitions to be named the personal representative of the estate.
• The court says, “yes, you’re approved to be personal representative. Here are the documents approving you as personal representative.”
• Assets are gathered by personal representative.
• Assets are disbursed.

The same causes of action applicable in setting aside a will:

• Undue influence
• Lack of capacity
• Tortious interference with a testamentary expectancy

So you’re named the personal representative and the will or estate is open. Typically what happens is that the personal representative sends out a notice to all “interested persons.”

“Interested persons” have an interest in the estate or will and have 90 days to contest the will.

Here is Where Probate Litigation Begins

Here is where most of my probate or estate litigation happens. The will is contested because there was undue influence or there was a lack of capacity, when it was executed, or tortious interference with a testamentary expectancy.

I see situations where a will or an estate is changed and where the beneficiary becomes someone else, but it is a different personal representative.

So in this context, the personal representative may not be the bad actor and they’re not going to be the primary target of a lawsuit, but they are still going to be named because they are the personal representative.

It’s a personal representative’s duty to defend the will, but you are really going after the person whom you believe unduly influenced the testator. So there are different types of probate litigation.

You have the probate litigation against someone you believe improperly influenced the testator to get a bigger inheritance.

There’s a situation where you believe the personal representative is breaching their duties. You know they’re stealing from the estate or they’re just not conducting the probate properly.

Creditor litigation occurs when someone dies. The probate is opened. The personal representative sends out notice to all the creditors, and the creditors file a claim against it.

Then, if the personal representative objects, there’s litigation pertaining to that particular claim of the creditor.

The personal representative is the person approved by the court to carry out the probate procedure.

What is Probate?

Probate is the formal court supervised process whereby a person’s will is proven to be valid and complied with.

The first thing a personal representative does is seek to open the probate with the court by filing a petition for administration.

He or she will also file the decedent’s will and death certificate with the court.

Among the most important duties are:

• Serve the Notice of Administration on all of the beneficiaries, surviving spouse, and potentially other interested persons
• Gather all of the assets of the estate
• Determine all of the creditors of the decedent
• Settle debts with creditors
• Pay any owed estate taxes
• Distribute the remaining assets of the estate pursuant to the will
• Close the estate

These are the basic duties of a personal representative. It is important for a personal representative to remember that they are authorized to hire professional help. Accountants and lawyers are often crucial in helping a personal representative comply with their duties.

What is a Beneficiary?

A beneficiary is a person or entity designated in the will to receive money or other assets from the estate.

What does a Beneficiary do?

A beneficiary does not have an affirmative duty in the probate process. The personal representative bears the responsibility to move the probate forward.

However, there are things a beneficiary should do during probate, and a beneficiary does have certain rights.

What Should a Beneficiary Do in Probate?

First, what is probate? Probate is the formal, court supervised, process whereby a person’s will is proven to be valid and complied with.

• Stay apprised of what is happening within the probate.
• Review documents received relating to the probate in a timely fashion.

If a beneficiary has questions, then they should address them with the personal representative.

What Are Beneficiary Rights?

A beneficiary also has certain rights. For example, the beneficiary has the right to:

• Receive a copy of the will
• Receive an inventory of the estate’s assets
• Receive a copy of the estate tax return
• Know how much debt the estate has
• Know how the estate is paying for the debt
• Request ongoing reports from the personal representative during the course of the probate