Court Bonds

Timing’s Everything: Probate Disputes



Ideally, careful estate planning results in a valid will, and likely a trust too, as well as communication of intentions and designation of a fiduciary, such as an executor or trustee, to carry out the arrangements. Absent a solid estate plan, probate disputes can arise, but are required to follow specific timing protocols.


Case In Point

State level protocols govern the timing of notifications that must be made during probate, and adherence to the rules is required. As Randy Sullivan, of Patton Sullivan Brodehl LLP explains: “A gateway issue in any trust and estate administration is the question of whether there will be a contest challenging the validity of any will or trust. The question of whether there will be a contest is addressed through strict notice periods.” The importance of timing in probate disputes is underscored by the recent case of Bailey v. Bailey, involving the brother and son of a deceased man, in which a will was discovered “post-issuance of letters testamentary.” Sullivan shares this overview of the proceedings:


The administrator, the deceased’s brother, petitioned for letters of administration under Probate Code section 8226. This section governs the administration of an estate where there is no will. The deceased’s son received notice of the petition. But because there was no will the deceased’s son expected to be treated as an intestate beneficiary. However, the facts relating to the estate changed after the petition….The deceased’s brother discovered a will…then lodged it with the court roughly two weeks before the hearing. At the hearing, the deceased’s brother represented he did not intend to admit the will to probate. Yet, after the hearing the deceased’s brother provided “Notice to Potential Beneficiary of Petition for Letters of Administration Under Probate Code § 8226”… .Then once a final inventory was filed the deceased’s son learned he stood to inherit nothing, and challenged the will.


The brother then asserted that the son’s challenge to the will was “untimely,” in that it should have been made “60 days after notice,” in accordance with provisions in Probate Code 8226. Ultimately, however, The Court of Appeals rejected the brother’s argument, based on timing:


The fundamental flaw in the deceased’s brother’s claim was that notice should have been provided before a hearing and not notice after a decision. Here, the issue decided was the appointment of an administrator for an estate without a will – not one governed by a will where the son was disinherited. To trigger any deadline required that the deceased’s brother petition under Section 8110. The goal being to provide clear notice of the intentions and relief sought in the petition prior to any hearing. This would have provided each potential beneficiary with a copy of the will and afforded 15 days-advance notice prior to any hearing.


Summing up, experts at Patton Sullivan Brodehl remind us: “As facts develop, the probate code must be consulted regularly… Any petition must clearly state its intentions and provide sufficient notice to any potential heir or beneficiary. When there is a reasonable doubt over whether notice provisions have been satisfied it may warrant amending the petition and providing new notice.”


Helpful To Know: Litigation and Court Bonds

Reminding us that assets intended for beneficiaries cannot be distributed until legal challenges to the estate plan are resolved, attorneys at Frank & Kraft report that despite the evidentiary burdens involved, “The frequency with which probate litigation occurs has been increasing in recent years…”. The most common examples of probate litigation include: “contesting a will; disputing a trust; highlighting undue influence; disproving false claims from creditors; and, removing an executor for breaching their fiduciary duties.”


Typically, when legal remedies are sought, court bonds, such as probate bonds and appeal bonds are required, and it is essential to obtain them quickly, to meet deadlines and avoid delays. Across the country, attorneys and their clients trust Colonial Surety for easy and speedy court bonds of all types. At Colonial, the steps to securing probate and appeal bonds are simple: get a quote online, fill out the information, and enter a payment method. Then, print or e-file the bond before even leaving the courthouse.


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