An important concern is who pays for the cost to litigate. Typically, the estate will pay the cost to defend or prosecute an action subject to court review and approval. Attorney’s fees must be reasonable and beneficial to the estate. Persons challenging the will or actions of the personal representative must pay out of pocket, but can recover from the estate or seek to assess a surcharge against the incumbent personal representative if that person is removed for good cause and has caused damage to the estate.

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When estate litigation is settled, the estate may pay for some or all of the attorney’s fees incurred, subject to court approval. Probate litigation can be expensive and ultimately will decrease the funds available to distribute to the heirs. Therefore, the personal representative and the attorney representing the estate must be careful to resolve disputed probate issues in an economical manner.

Costs of litigation

After the personal representative is appointed and the will is admitted into probate, the personal representative may be a plaintiff or a defendant in litigation representing the interests of the probate estate. For example, if the decedent was a tort victim or damaged in a contract action, the personal representative may bring a legal action on behalf of the estate to recover damages. Sometimes, the decedent may be held legally liable for legal breaches, and his estate may be sued, requiring the personal representative to defend the estate against such claims. Depending upon the estate's assets and the assets' character, the personal representative may have to negotiate or litigate tax, real property, or creditor issues on behalf of the estate. If there are unreasonable delays in probate administration and/or the personal representative fails to discharge his/her duties, interested persons may appear in the action and litigate issues that cause the personal representative to be removed from office.

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Although probate litigation is not typical, it sometimes occurs in an estate's probate administration. These are just a few examples of probate litigation that may arise.

Representing the estate in litigation

Estate planning involves more than a simple boilerplate trust document. On the contrary, a good estate planning attorney has experience in several related areas of the law. In the realm of estate planning, the attorneys at NewPoint Law Group, LLP, are well-versed in fundamental estate planning, asset protection, probate administration, probate litigation, trust administration, and trust litigation, in addition to real property law, business law, and tax law.
 

While NewPoint Law Group, LLP, offers a la carte preparation of individual estate planning documents such as a trust, will, powers of attorney, etc., it is generally advisable to have an estate planning package that includes a trust, pour-over will, durable power of attorney, advance health care directive, and a HIPAA authorization. NewPoint Law Group, LLP, can design an estate plan that meets your present and future needs and preserves your assets during your lifetime and for the benefit of your family, friends, and favorite charities according to your wishes.

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