Probate is the legal process typically required after an individual’s death to settle and distribute the decedent’s estate. The probate process can be costly and complicated even without disputes; however, when a dispute turns into litigation, it can wreak havoc with the administration of the estate. The Grand Forks probate attorneys at German Law explain what to expect if you find yourself involved in probate litigation.
Probate Basics
Most people leave behind an estate when they die. That estate consists of all assets, both tangible and intangible, owned by the decedent at the time of death. Probate is the legal process by which those assets are identified, located, valued, and eventually distributed to the intended beneficiaries and/or legal heirs of the estate. Creditors of the estate are also notified and provided an opportunity to file claims during the probate process.
If the decedent left behind a valid Last Will and Testament, the individual named as the Executor in that Will is responsible for overseeing the probate process and the terms of the Will are used to determine how the estate assets are distributed. If the decedent died intestate (without a Will), someone typically volunteers to be the Personal Representative and oversee the probate of the estate and the state intestate succession laws dictate how estate assets are distributed. If the decedent left behind a trust, assets held in the trust are not required to go through the probate process. Instead, the Trustee of the trust can distribute those assets to the named beneficiaries at any time according to the terms of the trust immediately after the Settlor’s death of the trust terms allow.
Common Causes of Probate Litigation
As you may well imagine, disputes can occur during the probate of an estate. In fact, the frequency with which probate litigation occurs has been increasing in recent years. Some of the more common causes of probate litigation include:
- Contesting a Will –to contest a Will you must allege, and eventually prove to be successful, that the Will is legally invalid for one of several allowable grounds. When a Will contest is initiated, the entire probate process effectively grinds to a halt to focus on the challenge to the Will. Until that issue is decided probate cannot move forward because the outcome of the Will contest determines how the estate is probate, using the terms of the Will or using the intestate succession laws.
- Contesting a Trust – a trust can be contested in much the same way, and for most of the same reason as a Will. Unlike assets distributed via a Will, assets distributed via the terms in a trust are not subject to going through the probate process. Consequently, the probate of an estate may not be directly impacted when a trust is challenged; however, the distribution of the assets held in the trust may certainly be affected.
Why Might You Be Involved in Probate Litigation?
If you are an Executor, Personal Representative, or Trustee you have a fiduciary duty to defend the Will, trust, and/or estate throughout any litigation that may arise. To ensure that you do not make a costly mistake, retaining the services of an experienced probate litigation attorney is highly recommended. If you are a beneficiary or heir, you have a right to challenge the Will, the trust agreement, and/or the way an Executor, Personal Representative, or Trustee is fulfilling his/her duties and responsibilities. To increase your chances of succeeding, you will also need the assistance of an experienced attorney.
Contact a Grand Forks Probate Attorneys
Please join us for an upcoming FREE seminar. If you have additional questions or concerns about probate litigation, contact the Grand Forks probate attorneys at German Law by calling 701-738-0060 to schedule an appointment.
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