Probate Litigation: What to Expect and How It Will Happen

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: What to Expect and How It Will Happen

The probate litigation process is similar to other civil litigation. A knowledgeable and experienced probate litigation attorney can assist you at every stage of this process. Contact Burandt, Adamski & Feichthaler, PL in Cape Coral, FL, to schedule a consultation with an attorney to discuss whether and how to move forward with your probate litigation claim.

The Process of Probate Litigation

Probate litigation combines features of both a probate proceeding and a civil law action. If an individual with proper standing contests a will submitted for probate, the probate judge will review the claims. If the probate judge finds that there is an issue relating to the will's validity, she or he will send the case to trial.

Probate litigation takes place in civil court. A civil case regarding a will proceeds like any normal court case, in which lawyers for each side present evidence, select and question witnesses and put forth exhibits before the judge or jury. The burden of proof on the individual or individuals in a will contest is onerous because a will contest depletes money from the estate of the deceased. A will contest is also seen as an upset to the time and effort the deceased put into estate planning.

Probate Laws Vary by State

The laws that apply to the probate of a will depend on the state in which the will is being probated. Some states have created their own probate laws, while others follow a version of the Uniform Probate Code (UPC). The UPC was initially created in response to concerns that probate laws lacked uniformity across the country; also, there was an increase in complicated estates (e.g., multiple marriages). The UPC covers several topics, including the creation of wills, estate administration, guardianships and conservatorships, non-probate transfers and trust administration.

Legal Remedies in Probate Litigation Are Limited

It is important to understand that one cannot contest a will by asking for "specific performance." Specific performance is a remedy provided in certain civil cases, where one party sues for a specific result. In probate litigation, the court is able to provide one of three remedies: (1) the will is valid and shall be probated as is; (2) 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; or (3) the whole will is invalid and the estate will be probated according to state intestacy laws. The repercussions of any of these results can be overwhelming. A knowledgeable probate attorney can guide you through this process and help you understand the full implications of the results.

The Non-Legal Consequences of Probate Litigation

Probate litigation may cause immense stress to family members and friends of the deceased, which can lead to permanent rifts within families. The amount of time, energy and money spent on litigation can also be burdensome. The undertaking of litigation to determine the validity of a will is a difficult decision to make and should not be entered into lightly.

Speak with an attorney

Avenues to challenging the probate process may not be intuitive. A knowledgeable probation litigation attorney at Burandt, Adamski & Feichthaler, PL in Cape Coral, FL, can help you determine whether you have a case for challenging any part of a will.

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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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