Probate is the legal, public process that brings closure to our affairs when we die. Probate protocols vary by state, and at some point, most families will navigate the appropriate proceedings upon the death of a loved one. Lawyers share advice to prevent families from ending up mired in complications—or probate litigation.
Avoiding Probate Litigation
Probate litigation should not be confused with the probate process itself, which in essence is simply the court-supervised, public process of settling debts (such as taxes) before assets are distributed. If there is a will, the designated personal representative, typically referred to as the executor, files it in probate court and moves the process forward from there. If there is no will, the court designates a representative, often referred to as an administrator and assets are distributed following the state laws of intestacy. As Kennedy & Rusham Law explains, on the other-hand, probate litigation “Refers to lawsuits filed in probate court — and the legal proceedings associated with resolving these lawsuits.” Among the causes of probate litigation are:
- Contesting a will
- Disputing a trust
- Highlighting undue influence
- Disproving false claims from creditors
- Removing an executor for breaching their fiduciary duties
The Law Office of Whitney L. Thompson in Houston points out that family dynamics are frequently the underlying reason for probate complications and shares these two specific examples: disagreements about “how to handle a mentally incapacitated family member and disagreements regarding the dissolution of the estate.” Additionally, as reported in Digital Journal: “Probate litigation often involves estates with self-prepared estate documents. Handwritten forms from online resources lead to many mistakes that a layperson cannot foresee. Money that winds up litigating over defectively drafted documents most often far exceeds the cost of hiring an estate planning attorney to prepare your documents correctly.”
Honest Family Discussion
Estate planning experts remind families that it is important to honestly and courageously discuss family matters and to carefully choose and prepare a fiduciary, such as an executor, to ultimately manage the affairs of the estate in accordance with the law. As Thompson sums up: “It is important to be hyper-realistic about the family dynamics in order to reduce the chance of probate litigation. This situation can often be difficult for parents because it could mean that they are owning up to the sibling rivalry and identifying hostilities in blended family situations.”
If family difficulties emerge upon the death of a loved one, litigators suggest that before undertaking a court battle, it is wise for relatives to carefully—and honestly—assess their relationships with the deceased, as well as the laws, process and fees typically involved in probate litigation. Probate Stars emphasize:
It is a virtual certainty that your relationship with the decedent will be put under the microscope when you file a will contest….So ask yourself:
- When was the last time you saw or spoke to the decedent?
- Did you have a falling out with the decedent?
- If you were so concerned about the decedent’s capacity and ability to care for themselves, what did you do about it during their lifetime?
- Did you ever take decedent to the doctor?
- Did you send the decedent birthday and Christmas cards?
- Did Decedent tell you that you were being cut out of the will?
- Were you in Decedent’s prior estate planning documents?
Good To Know
During probate, It is not uncommon for courts to require a probate bond. The terminology and requirements for probate bonds varies by state and circumstance, but the purpose is essentially the same: probate bonds protect the interests of the estate and its beneficiaries in accordance with state law. When the court requires a probate bond, it is critical to meet the deadline and avoid delays. That’s why Colonial Surety makes it easy and speedy to obtain every type of probate bond with our direct, digital service: just get a quote online, fill out the information, and enter a payment method. The bond can even be e-filed right from court.
Colonial Surety helps probate lawyers and their clients obtain fiduciary and court bonds quickly, and easily with a direct, online bond service. We also offer attorneys complimentary business support services via The Partnership Account®.
Lawyers anywhere in the country can sign up for The Partnership Account® for Attorneys in minutes, and immediately gain direct access to our complete online portfolio of court and fiduciary bonds–and a private dashboard. Use it to quickly and efficiently obtain, track, manage and even e-file any bonds needed to keep your clients and cases moving forward.
Colonial’s online bond portfolio includes: administrator, estate, executor, guardian, personal representative, probate, trustee and conservator. We also have: appeal, supersedeas, injunction, replevin and receiver bonds—and more.
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Founded in 1930, Colonial Surety Company is a direct writer of surety bonds and insurance products. Colonial is rated “A Excellent” by A.M. Best Company, U.S. Treasury listed, and licensed for business everywhere in the USA.