What is Probate Litigation?
Probate courts handle different types of legal issues.
Most people will see a probate court after a loved one has died, since the probate court must determine that someone has died and whether to admit their will into probate.
The vast majority of probate cases are not contested, but some will be.
Types of Probate Disputes
Probate litigation can take many forms, such as:
- Challenges to the validity of a will
- Trust and will construction suits to determine the legal meaning of particular language and its effect
- Trust modification lawsuits to fix trusts that are defective in some way
- Trust termination suit to end the existence of a trust
- Breach of fiduciary duty actions brought against executors, trustees, and others for causing injury by not following the law
Probate courts also hear guardianship proceedings, where someone can seek a guardianship because a person can no longer make decisions for themselves because of incapacity.
Of these probates disputes, perhaps the most challenging are will contests where someone questions the validity of the will. For example, a disappointed heir might bring a will contest for the following reasons:
- The will was not executed properly, e.g., it did not have two witnesses
- The person who created the will (testator) lacked mental capacity when creating the will or the amendment to the will (a codicil)
- The testator executed a subsequent valid will which should be admitted to probate instead of the will submitted with the application for probate
- The will was obtained by fraud or duress
In these disputes, a probate judge will receive testimony and evidence, which will depend on the nature of the dispute. This type of probate litigation is challenging because the testator is no longer alive and therefore cannot be examined by the court. Instead, each side will present evidence on its behalf, which can take the form of witness testimony and medical records.
If a judge finds the will invalid, then he or she might:
- Admit a prior will into probate
- Admit a subsequent will or codicil if it is valid
- Admit no will and proceed under the state’s intestacy rules
- Admit a portion of the will to probate but not the rest
Litigants who want to challenge a will should consider each probable outcome and understand how their rights will be affected. For example, someone who receives a small legacy under the will might receive nothing if a prior will is admitted into probate. In this situation, contesting a will might not be in your best interests.
Will Contest Warning Signs
Any estate planning attorney must analyze a client’s personal situation to identify whether a will contest is in the future. Although every situation is different, there are some classic warning signs:
- Family members do not get along. If siblings do not talk, then they can often disagree during the probate process.
- The testator is not leaving children an equal amount. A testator can leave assets however he wants. Nevertheless, unequal distributions often create powerfully negative emotions, which might lead directly to a will contest.
- The testator has children from multiple marriages. Sometimes, testators intentionally or inadvertently leave children from a prior marriage fewer assets or disinherit them altogether. These actions can invite a will contest.
- The testator has significant assets before entering a second marriage. In this situation, fights can break out over whether assets are community property which the surviving spouse should inherit, or whether these assets are separate property.
If any of these situations apply, then estate planning attorneys must exercise special care when drafting wills and other estate plan documents. When estate planning lawyers make errors, then probate litigation can gain traction and a judge will need to decide these issues.
Executors and trustees owe beneficiaries certain duties. Some duties include:
- Treating beneficiaries fairly
- Not self-dealing or profiting from their role as a fiduciary
- Avoiding conflicts of interest
- Competently performing their duties
If a fiduciary fails at one of these duties, and if a beneficiary has been harmed, then a lawsuit might be appropriate. Injured beneficiaries can sue to have the fiduciary removed and to receive financial compensation to make up for their losses.
Of course, some challenges to fiduciaries lack merit. Although a fiduciary must treat beneficiaries fairly, they do not have to treat them equally if the will or trust states that they will receive different gifts. Sometimes, disgruntled beneficiaries challenge a fiduciary simply because they cannot succeed at challenging the will or trust.
Hiring the Right Probate Litigation Attorney
Not all lawyers have the necessary experience to prosecute or defend clients in probate litigation. Some handle only a small number of probate cases a year, most of which are not contested. However, contested litigation requires a lawyer with deep experience in the following:
- This is the evidence gathering phase of litigation. Your probate litigation lawyer should have experience using interrogatories, requests for production and depositions to ferret out helpful information.
- Small disputes crop up in all contested manners, whether they are discovery disputes or motions to have a case dismissed. Only a lawyer with a solid foundation in litigation can effectively represent your interests at each stage of the lawsuit.
- Many issues can settle before trial, but a fair number end up in a courtroom every year. Look for a probate litigation lawyer with substantial courtroom experience.
At Lindquist Wood Edwards LLP, our Dallas probate litigation lawyers know litigation. We have handled all kinds of litigation disputes, including contested probate matters, and are happy to answer any question you have. To help you better understand what we offer, we offer possible clients a free consultation where they can describe their dispute and ask any question they want.
Speak with a Dallas Probate Litigation Lawyer
If you are involved in a probate dispute, you deserve experienced legal counsel who will protect your rights. Depending on the dispute, this might include challenging a will, defending a will, suing a fiduciary, or defending yourself from a lawsuit. Whatever situation you find yourself in, the Dallas probate litigation lawyers at Lindquist Wood Edwards LLP can help. To schedule your consultation, please contact us at 214-760-6893.