What Does a Probate Litigation Attorney Do?

When someone dies, their assets need to be distributed to the rightful heirs and beneficiaries. Probate is the legal process that facilitates this distribution, especially when there is no will, a will exists, or a trust was not fully funded, leaving assets subject to probate. Without a will, state laws determine asset distribution. If there is a will, it outlines how the decedent’s assets should be allocated among family members, heirs, beneficiaries, charities, etc. Ideally, the instructions in the will are clear, allowing for a smooth process. However, disputes can arise, leading to litigation. Probate litigation is complex, governed by specific rules and deadlines. A probate litigation attorney assists individuals, heirs, beneficiaries, executors, and trustees in navigating the litigation process to achieve the best possible outcome.

Definition of Probate Litigation

Probate litigation involves legal proceedings related to contesting a will, disputing a trust, addressing breaches of fiduciary duty, resolving property title issues, recovering wrongfully taken property, dealing with incapacity or undue influence, or handling claims of tortious interference with expected inheritance.

What Is Probate Litigation?

Probate litigation is the court process through which individuals seek to address perceived wrongs or obtain court directions concerning a loved one’s will or trust.

Is a Probate Litigation Attorney the Same as a Probate Litigation Lawyer?

Yes, the terms "attorney" and "lawyer" are interchangeable. However, there is a distinction between a probate litigation attorney and an estate planning attorney. A probate litigation attorney is a trial lawyer experienced in wills, trusts, estate planning issues, and court procedures for contesting wills and trusts. In contrast, an estate planning attorney specializes in creating estate plans, trusts, and wills but usually does not engage in trial work.

When Do I Need to Hire a Probate Litigation Attorney?

You should consult a probate litigation attorney whenever you have concerns about a loved one’s estate decisions or if, as an executor or trustee, you face questions about your administration of a will, estate, or trust. A probate litigation attorney can help resolve common disputes, such as:

Contesting a Will

Wills, trusts, or estate plans may be changed under suspicious circumstances, such as in a hospital after a stroke, or to benefit an unexpected person like a caregiver. Errors or omissions in these documents might also need legal resolution. In these situations, legal contestation or court intervention may be necessary.

Undue Influence

Undue influence occurs when someone in a position of power manipulates another individual, often coinciding with claims of mental incapacity. If an heir or beneficiary believes the decedent's true wishes were overridden for someone else's benefit, they can challenge the document's validity and seek a court-approved distribution.

Mental Incapacity

A probate litigation attorney may challenge a will if there is a belief that the decedent lacked the mental capacity to make informed decisions about asset distribution.

Breach of Fiduciary Duties

Executors and trustees are fiduciaries responsible for fulfilling a will or trust's requirements. If they fail to act according to the decedent’s instructions or legal obligations, probate litigation can seek their suspension or removal, appointment of a responsible fiduciary, and recovery of damages for fiduciary breaches.