Estate Disputes: How a Probate Litigation Attorney Can Help You
When someone passes away, their estate, which consists of all their assets and debts that do not transfer automatically upon death, will need to be distributed according to either a valid will or the laws of the state that regulate what happens if someone dies without a will. Probate is the legal process of administering the estate. Many estates go through the probate process without much controversy, but disagreements and conflict over the estate can lead to contentious litigation. Probate litigation can be messy, with many emotional challenges and complexities so it is always best to have an attorney on your side who is knowledgeable with the ins and outs of the process.
Understanding Estate Disputes
There are a number of disputes that can arise when an estate is going through probate, some of which have to do with the will itself, and some as a result of family dynamics. One of the most common disputes is the validity of the will itself. The will can be contested for its validity if it appears that the person who made the will lacked the mental capacity to create a valid will, or if undue influence or fraud is suspected.
In addition to contesting the will itself, disagreements can arise over the administration of the estate. If the will is unclear, there may be conflicts over the interpretation of the provisions or the distribution of assets. Even if the validity of the document itself is not in question, beneficiaries can argue that the probate process is being managed improperly, and they often argue that the executor breached his or her fiduciary duties. Creditors or individuals can also file claims against the estate arguing that the decedent owed money, and therefore they should be paid for the debt out of the estate.
Understanding the Probate Process
In general, the probate process will follow a clear path.
- After death, the will is verified and filed in court in the county where the deceased lived.
- Documents are signed by an applicant, and that person is usually appointed by the probate court to be the representative of the estate. This person is referred to as the executor or administrator.
- Probate bonds may need to be posted by the applicant, depending on whether this requirement was waived by the decedent in his/her will. This is a type of insurance that the representative will fulfill their duties.
- People with an interest in the estate are notified and provided a copy of the will, if one exists.
- The estate representative needs to locate and protect all of the decedent’s assets, including bank accounts, financial portfolios, real property, personal property, and any other type of assets.
- Once all of the property is identified these assets will be appraised and an inventory filed with the court.
- All creditors have a limited time period (beginning on the day of death) to make a claim against the estate. If the claim is properly presented, and if there are sufficient proceeds, debts are paid in accordance with a certain priority. This usually requires the estate representative to liquidate assets and place the proceeds in an estate account for later distribution.
- Tax returns, if necessary, are filed and taxes are paid.
- Assets that remain are distributed according to the will, after the representative has received permission from the court.
Probate litigation results when there is some issue along the way through this process. Sometimes these issues will arise during the very first stage with the validity of the will itself, while other issues may not arise until the process gets under way. If you think there will be an issue with the process, you need to speak to an attorney as soon as possible.
How a Probate Litigation Attorney Can Help You
If you anticipate that an estate in which you have an interest will go through probate litigation, you need an experienced attorney who is skilled in the process to guide you. Probate law can be very complex, and attempting to work through the process on your own can be overwhelming. Your attorney can help you with several key steps.
If you believe that the will is not valid, you need to consult with an attorney immediately as the time to file a Will contest is very short (only 90 days in Ohio). This attorney can help you review the document, the evidence you have to challenge its validity, and what the next steps are moving forward. The common scenario for contesting a will is usually when a will is changed through unusual circumstances. If the deceased changed their will at a time of diminished mental capacity, such as during a hospitalization or during a period where memory loss was is evident, and there is believed to be undue influence from another party who would benefit from the change in will, the will can be ruled to be invalid. In that case the assets will be distributed in accordance with what a prior will or the law of intestacy. Your attorney will help you gather the evidence you need to support this type of claim.
Resolving Financial Disputes
Aside from contesting the will itself, there are often potential disputes over asset distribution. The executor is appointed to carry-out the requirements of the will, and if they are not acting in accordance with those instructions and obligations, they can be challenged through a removal process. Your attorney will advise whether this is a viable option, and if so, will file the necessary motion, and present evidence at a hearing for this person’s removal and replacement.
Handling Legal Technicalities
Probate law is complex, and even when the will is in order, there can be many legal technicalities that arise during the process. Your attorney will have the necessary knowledge and experience to work through these technicalities, identify the issues, and determine the best strategy to move forward.
Mediation and Negotiation
When all of the evidence has been gathered and put in trial-ready form, before proceeding to trial, your attorney may initiate a process of mediation and negotiation. In many cases, it is better to agree upon a settlement outside of probate court. Your attorney will help you develop a settlement offer you are comfortable with, and then work through the negotiation process with the opposing party to find a settlement that is favorable to both.
When you are faced with probate litigation, you need help from an experienced attorney. If you are going through the process of probate and suspect that you may need to challenge the will, the administration, or the distribution of assets, contact Arthur Law Firm (419) 782-9881 right away.