Probate litigation involves controversies that may arise during the administration of a probate case. In the initial phase of a probate, a petition is filed and seeks to admit a will to probate and to appoint the petitioner as personal representative. Personal representative is a generic term for the executor or other person approved by the court to administer the estate. In this phase of a probate, an interested person may wish to challenge the admission of a will to probate, and/or oppose the appointment of the petitioner to serve as the personal representative.
When an interested person challenges the admission of a will to probate, there are settled legal grounds that may form the legal basis for such a challenge: the assertion that the will that was lodged with the court is not the last will of the decedent, or an assertion that the will is not valid, i.e., was not properly prepared, signed, or witnessed. Another ground for challenge would be if it is asserted that the maker of the will was of unsound mind at the time the will was executed. Other challenges may be that the maker of the will was under duress or undue influence when signing the will.
Litigation may also arise when there is opposition to the person seeking to be appointed as the personal representative. Legal grounds for such an opposition include whether the person was named in the will to serve as executor, whether someone else seeking to serve has a higher priority, whether the petitioner is disqualified to serve, and whether the petitioner is competent to serve.
Representing the Estate in 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 victim of a tort 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 assets of the estate and the character of the assets, 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.
Although probate litigation is not typical, it sometimes does occur in the probate administration of an estate. These are just a few examples of probate litigation that may arise.
Costs of Litigation
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.
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 amount of funds available to be distributed 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.
How Our Probate and Estate Planning Attorneys Can Help
The attorneys at NewPoint Law Group have represented personal representatives in defending the estate as well as interested persons seeking to challenge the will or the conduct of a personal representative. Our attorneys understand the advantages and disadvantages of litigation from the perspective of both sides. If you are presented with such issues and controversies, please contact NewPoint Law Group by calling 1-800-358-0305 or message us online for a consultation.