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What Exactly Is Probate Litigation?


Probate litigation occurs any time there is a dispute in any of the subject matter over which the probate court has jurisdiction, including wills, trusts, conservatorships, and guardianships.

What Are Some Risk Factors For Probate Litigation To Occur?

The death of a loved one is the time when family members should join together, but too often the distributions of the decedent’s assets polarize family members. The risk factors for probate litigation are dependent on the situation or type of probate. If someone leaves their estate unequally to their heirs, then one of the heirs may suspect that one of their siblings influenced that decision, and may file a contest in response. Within guardianships, there could be a contest over who should have guardianship of a child. Conservatorship risk factors that often lead to litigation include financial disputes, an allegation that the person is unable to take care of themselves, or arguments about how the money should be handled.

How Does Probate Litigation Affect The Overall Probate Process?

Probate litigation will cause a delay in the administration of the estate because it must be settled before the estate is distributed. The typical probate litigation items within a probate case include how to deal with the property of the estate and how the estate should be distributed. Oftentimes there is a question as to whether or not an item should be part of the probate estate.

Is The Probate Court Always Involved?

The probate court does not have to be involved when someone dies. If proper estate planning has been done, then it’s possible that nothing will go through the probate court. Estate planning reduces the risk of litigation and ensures that your wishes are followed regarding the distribution of your assets.

What Are Non-Probate Assets?

Non-probate assets are assets that have been pre-positioned so that they do not have to go through probate. These assets include retirement accounts that have beneficiary names, bank accounts that have pay-on-death names, and trusts in which the decedent placed all of their property. If their property is in a trust, then all of the person’s property will belong to that trust upon their death and there will be no need for probate. When a trust is in place, the trustee is able to distribute the assets without involving the court system.

What Kind Of Gifts Could Be Disputed Through The Probate Process?

Every type of gift could be disputed in the probate process – money, real property, family heirlooms and even the decedent’s pet. Most commonly disputes occur when there is an unequal distribution.

Who Is Able to Contest A Will Or An Estate?

Any person with standing is able to contest a will or an estate, and in order to have standing, one must be a beneficiary or a descendant. A parent of a minor will be able to contest a will or estate on behalf of that minor.

What Are Some Signs When Someone Should File A Probate Contest Or A Will Lawsuit?

If it’s obvious that there has been an undue influence in creating a will or when it’s possible that a will has been forged, then it would be prudent to file a probate contest or lawsuit.

How Can The Validity Of A Will Or A Trust Be Determined?

The validity of a will or trust is determined through probate litigation. Certain aspects that could be attacked include undue influence, the mental capacity of the testator at the time the will was created and the competence of the settlor of the trust.

Can A Decision Make By The Probate Court Judge Be Appealed?

Decisions made by the probate court judge are not final and can be appealed. If the appellate court decision is not satisfactory, then it too could be appealed – to the California Supreme Court.

Do I Need An Attorney For Probate Or Trust Litigation?

A trustee of a trust must have an attorney for trust litigation. An individual who is not a trustee is not required to have an attorney, but having competent counsel often makes the difference between success and failure.

What Can An Estate Planning Attorney Do When There Are Objections?

When there are objections, the estate planning attorney can demonstrate why the trust or will provision is valid.

How Can I Avoid Probate Litigation?

In order to avoid probate litigation, it is important to make informed and sound decisions and to have them documented by an attorney. It’s also important to leave documents that detail why certain decisions were made in the creation of the estate plan. If someone leaves a large gift to charity, then they should leave evidence of having made that decision. I have handled cases in which the testators gave their entire estate to charity and nothing to their children, and other cases in which entire estates were given to nieces and nephews rather than the children. In all of these cases, we thoroughly documented why the decision was made and kept those documents in a permanent file for use in the event that an issue was contested.

For more information on Probate Litigation In California, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (916) 915-8866 today.

California Probate Lawyer Peter Cianchetta

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