Probate Litigation - An Overview

The ownership of some assets can make them exempt from probate, and other estate planning techniques can also keep property out of probate court. If you have questions about your estate plan or about avoiding probate, contact us to schedule a consultation with an estate planning attorney for straightforward solutions that will work for you.

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Probate Litigation - An Overview

Estate administration and probate litigation can be time consuming and confusing. A competent and experienced probate and estate administration attorney from Burandt, Adamski & Feichthaler, PL in Cape Coral, FL, can facilitate this often-difficult process in a timely and effective manner. If you need help in the administration of an estate, contact Burandt, Adamski & Feichthaler, PL today.

Probate litigation involves both probate court and civil court. Before or after a will has been submitted for probate, an individual with standing to make a claim attacking the validity of the will can bring that claim before the probate court. A probate judge will hear the claim and determine if there is an issue relating to the will's validity. If there is an issue, the judge will send the claim to civil court.

When to Initiate Probate Litigation

Depending on the state in which the will is to be probated, the timing of raising an objection to a will can vary. In some states, a claim attacking the validity of a will must be brought before the will is submitted to probate. If the claim is not made in that time period, the right to contest the will is lost. Most states, however, allow the will contest to be filed after the will has been submitted to probate. There are usually time constraints for these filing periods. An attorney can assist in ensuring the timely filing of such an objection.

Common Claims in Probate Litigation

There are myriad reasons to enter into probate litigation. Will contests are raised to challenge the validity of the will. These claims may include:

  • Undue influence
  • Lack of mental capacity
  • The validity of a handwritten (holographic) will
  • Failure of the will to meet all of the formalities required by law, such as the requisite number of witnesses

Aside from will contests, litigation may also arise based on disputes over the administration of assets, a surviving spouse's elective share and asset evaluation techniques.

An issue may also arise if there is a "no-contest" clause within the will. Such a clause states that if an individual named in the will challenges the will, that individual loses all rights to receive anything. While the clause commonly appears in wills, it is important to understand that it is usually narrowly interpreted, and will not be enforced if a contest is brought in good faith.

What to Expect From Probate Litigation

If a probate judge determines that there is an issue relating to the will's validity, the judge sends the case over to civil court. The process from there mirrors that of any other civil proceeding. The contestant will be required to put forth evidence, witnesses and exhibits to prove the claim.

Even if the contestant wins, the remedies are limited. A judge will order one of the following:

  • The will is valid and shall be probated as is
  • Portions of the will are invalid, and the valid portions shall be probated as is, while the invalid portions will follow the state intestacy laws (as if the testator had died without a will), if necessary
  • The whole will is invalid and the estate will be probated according to state intestacy laws

How to Avoid Probate Litigation

Proper estate planning and the use of "will substitutes" may assist you in avoiding probate altogether. For example, you may put all of your assets in revocable trusts, create joint tenancies with rights of survivorship or designate beneficiaries to retirement and life insurance funds. While these tools may not keep your heirs from litigation after your death, you may at least find a way to control which of your assets will enter probate.

Speak to a probate litigation lawyer

Proper estate planning can help you minimize the risk of probate litigation. If you need help in administering an estate, contact Burandt, Adamski & Feichthaler, PL in Cape Coral, FL, to schedule a consultation with an attorney experienced in probate and estate administration..

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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