Probate is the public process of resolving the debts of the deceased, and then distributing assets either in accordance with the laws of intestacy, or a will. Probate goes smoothly for most families, though it does require time, patience and a responsible fiduciary, who depending on circumstances and location, is referred to as a personal representative, administrator or executor. Unfortunately, sometimes disputes do arise during probate, resulting in the need for probate litigation. If that happens, the services of an experienced attorney, such as an elder law attorney, become very important.
Resolving Disputes: Probate Litigation
The best way for families to avoid misunderstandings that spiral into conflicts and disputes as they settle the affairs of a loved one, is through proactive and comprehensive estate planning. Because no one can predict the future, making and communicating plans well before action is needed, is a wise choice—-and ultimately among the most important things we can each do to curtail stress for loved ones. As Mandelbaum Barrett PC explains, absent a clear estate plan, which is thoughtfully created, and properly witnessed and signed before capacity questions arise, confusion and unresolved conflicts can ultimately require court intervention, known as probate litigation:
Probate litigation refers to the legal disputes that arise during the probate process. These disputes can involve:
- Will contests – When someone challenges the validity of a will, often on grounds such as lack of capacity, undue
influence, or fraud.
- Trust disputes – Disagreements involving the interpretation, management, or validity of a trust.
- Executor misconduct – Claims that the executor or personal representative is not acting in the best interests of
the estate or its beneficiaries.
- Breach of fiduciary duty – When a trustee, executor, or guardian fails to act responsibly and ethically in managing
someone else’s assets.
- Contested guardianships – Disputes about who should be appointed to care for an aging or incapacitated loved one.
- Asset recovery – Efforts to reclaim assets that were improperly transferred or hidden before the decedent’s death.
When probate litigation becomes necessary, the guidance of an experienced attorney is critical, and elder law attorneys can bring especially useful skills to the issues at hand. Depending on the circumstances and type of dispute, elder law attorneys can represent beneficiaries or heirs, or the designated fiduciary, such as the personal representative, executor or trustee. Attorneys at Mandelbaum Barrett PC remind us that emotions are running high upon the death or incapacitation of a loved one, so supporting families to make “rational, informed decisions” during probate litigation benefits from:
- Specialized Knowledge of Complex Laws
Elder law attorneys understand not only probate and estate laws but also the nuances of aging, incapacity, long-term care planning, and guardianship. This specialized knowledge is essential when the dispute involves questions about mental capacity or undue influence….
- Experience with Family Dynamics
Probate litigation often stems from strained or complicated family relationships. Elder law attorneys are skilled at navigating these delicate situations, aiming to resolve matters efficiently while preserving family ties….
- Protection of Vulnerable Individuals
Elder law attorneys often represent or advocate for elderly or disabled individuals. They are familiar with how to protect the interests of vulnerable parties, whether it’s contesting a suspicious power of attorney or ensuring proper care through guardianship proceedings.
Probate Bonds Explained
It’s common for courts to require fiduciaries, such as executors, personal representatives, and administrators to obtain probate bonds. Essentially, a probate bond serves as a guarantee that the fiduciary will properly handle the debts and assets of the estate of the deceased in accordance with the law. Attorneys at Heiligman & Mogul, P.C offer this overview of how probate bonds work to protect the interests of the estate and beneficiaries:
- A probate bond, also known as an estate bond or surety bond, …serves as a financial guarantee for the actions of an executor or administrator (personal representative). The bond protects the interests of beneficiaries, creditors and others by ensuring the personal representative will administer the estate according to the law and the wishes outlined in the will….Should this person or institution mishandle the estate—by misappropriating funds, failing to pay off debts, or violating any legal obligations—the bond provides a financial recourse for the injured parties.
- If a claim is made against the bond and found valid, the bonding company will compensate the claimants, and the executor will be responsible for reimbursing the bonding company. This mechanism mitigates risk for beneficiaries and reinforces accountability among individuals tasked with managing estates.
Courts set the amount of a probate bond, generally based on the size of the estate and any other pertinent factors related to local probate protocols and the circumstances of the deceased. The probate bond is paid for by the fiduciary appointed to handle the estate (e.g. the executor, administrator or personal representative). However, it is not necessary to pay the full amount of the probate bond. To get a probate bond, you work with a reputable surety bond company and pay a small percentage of the total bond amount. Nationally recognized Colonial Surety Company makes it quick and easy to obtain probate bonds of all kinds. Our user-friendly online service allows you to quote and obtain a bond that is instantly available to download or e-file with the probate court.
Complimentary Bond Service for Elder Law Attorneys
Help clients in any court in the country to quickly secure fiduciary or court bonds with just a few clicks on The Partnership Account® for Attorneys. Simply select the bond needed, send it to your client for payment, and then download, e-file or print the bond.
Our fiduciary bonds include: administrator, estate, executor, guardian, personal representative, probate, surrogate, trustee, conservator and the list goes on.
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