Simply put, probate litigation is a legal contest about the assets and affairs of someone who has died. Probate litigation can also result from conflicts over the best interests of an individual experiencing a capacity decline. Whereas at some point, most families are likely to go through the ordinary, public process of probate to settle the affairs of the deceased, probate litigation can largely be avoided via careful, proactive planning and communication.
Uncontested Vs Contested?
Every state has probate laws and probate courts, which are called surrogate’s courts in some states, including New York and New Jersey. Notably, probate laws dictate the timing and asset distribution protocols for closing the affairs of the deceased. For example, probate protocols provide a process for verifying and paying outstanding debts, before assets can be distributed, either in accordance with a will, or absent a will, the state laws of intestacy. The need for probate litigation only arises when there are conflicts:
Most matters handled by probate courts, such as admitting wills and assigning executors, are standard and uncontested. Any legal contest that arises due to a person’s death or mental incapacity will be filed in a probate court and can be categorized as probate litigation. This process involves court battles among those still living over issues such as guardianships and conservatorships, powers of attorney, will or trust contests, and living wills. Probate litigation can refer to a number of situations. Common examples include:
- Challenges to the validity of a will;
- Suits regarding the construction or interpretation of wills and trusts;
- Contests over the appointment or conduct of a guardian;
- Trust reformation or modification lawsuits;
- Suits brought to terminate a trust because the trust’s purpose has become impracticable; and
- Suits by beneficiaries against a fiduciary, such as an executor or trustee, for failing to act in accordance with the law or a legal document.
While it is true that the ordinary process of probate can take some time and effort, and involves fees, with some careful planning, the kinds of probate complications that result in litigation can usually be avoided. Not surprisingly, non-standard estate plans, such as omitting a child or spouse, or making an unusual gift allocation, are more likely to be contested in court than typical arrangements. Failed communication, relationship conflicts, or mistrust of the designated fiduciary, such as the executor or personal representative, are further examples of what can lead to probate complications. During estate planning, it is essential to take the designation of the executor or personal representative seriously, since the responsibilities of bringing the affairs of the deceased to closure are far from ceremonial, and require time and diligence. Shortcomings can result in probate litigation: “This situation typically occurs when the fiduciary is a poor communicator, is unskilled at following instructions, procrastinates, is untrustworthy, is susceptible to the influence of others, is disorganized, or lacks common sense. The likelihood of probate litigation also increases when two parties have been named to act together as co-fiduciaries.”
Good To Know: Expedited Probate
Most families manage to navigate probate proceedings smoothly. In fact, many states now offer summary administration, which expedites probate procedures based on the value of the estate’s assets. Estate planning experts at Chambliss, Bahner & Stophel remind us that having a basic understanding of probate is very reassuring:
Contrary to popular belief, probate doesn’t have to be a dreaded experience. In fact, understanding the probate process can demystify it and empower individuals to navigate it more smoothly, putting them in control … .Probate is the legal process through which a deceased person’s assets are distributed to their beneficiaries and heirs. The procedures can vary based on state law and the complexity of the estate. Still, it typically involves validating the deceased person’s will (if they had one), identifying and inventorying the assets, paying off debts and taxes, and distributing the remaining assets according to the will or state law. The process can take as little as several months or as long as a year or more to complete.
Probate Bonds?
Whether full or summary probate is involved, it’s common for courts to require probate bonds, which serve as a guarantee that debts and assets will be properly handled in accordance with state laws and protocols. Probate bonds are sometimes alternatively referred to as estate, executor, personal representative or administrator bonds.
Colonial Surety Company makes it quick and easy to obtain all types of probate bonds via a user-friendly online service. Simply quote and obtain the required bond, and then instantly download and e-file it with the court.
Easy and Speedy Probate Bonds HERE
Probate Law?
With a few clicks on The Partnership Account® for Attorneys, probate attorneys everywhere around the country can quickly help clients secure court and fiduciary bonds, on the correct and specific obligee required forms.
Just 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. Court bonds include: appeal, supersedeas, injunction, replevin, receiver and more.
Easy, speedy court and fiduciary bonds here:
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