Common forms of probate litigation

Executive Summary

• Probate is the court process of marshaling, managing, and distributing the assets of an estate to the deceased’s legal heirs.
• The most common types of probate administration are formal probate, which facilitates the administration of an estate under close supervision of the probate court, versus informal probate, which involves a simpler process with minimal court involvement.
• Disputes can arise during either type of probate administration and common types of probate litigation can include will contests, creditor claims against the estate, disputes over estate asset distribution, and more.
• If you are facing a probate dispute or litigation, you should consult a probate litigation attorney to help you navigate and resolve the dispute. 

Introduction

When a person passes away, their assets must be gathered and distributed through a detailed process that aligns with state law. Probate is the court process by which this occurs. Usually, a will spells out the wishes of the decedent, directing which family members, friends, and other heirs will receive which assets.

Most of the time, instructions in estate planning documents are clear, and the process proceeds without a hitch. However, in some cases, disputes arise over how the estate should be administered, which can trigger litigation. A probate litigation attorney may be retained to represent beneficiaries as they attempt to sort through an equitable distribution solution. This can be relatively easy to do, but occasionally, things can become combative and drawn out. 

Understanding the different types of probate litigation will prepare you for potential disputes and help you determine when you may need legal support. This guide outlines the different types and causes of probate litigation, what you should expect from each, and how you might navigate them.

Understanding Probate: A Quick Recap

Probate is the court process in which the assets of an estate are gathered, accounted for, and distributed to the heirs or beneficiaries after an individual passes away, either in accordance with the deceased’s wishes if they had a will or following local intestacy laws if there was no will.

The first step in the probate process requires appointing an executor or administrator to oversee the distribution of assets and uphold the interests of the deceased in accordance with any available estate planning documents. This personal representative serves as the point person for determining how to manage the estate in alignment with the will and state law.

Probate can occur either with or without a will. In instances where there is a drafted will, the probate court will validate the document, review and officially appoint the executor named in the will, and then approve the distribution of estate assets to beneficiaries identified in the document. However, in cases where there is no will to follow, the assets are distributed fairly and equitably to the designated heirs in accordance with state intestacy laws, in a process known as intestate succession.

Probate is often supervised by the court, but it is possible to handle the process without significant court involvement. Ultimately, the process may look different depending on the case and the amount of assets there are to distribute—this is where the different types of probate come in.

Types of Probate

Probate can take different forms depending on the complexity and size of the estate. In cases of large, complex estates, probate will likely need to go through the court, while smaller estates can often bypass extensive court intervention for a more streamlined process. There are two main types of probate.

Formal Probate 

Formal probate is the most common method in which the probate administration process occurs. Formal probate is often associated with a longer process that involves the courts for the management and distribution of assets, as a longer list of assets requires more time and supervision to manage and distribute adequately.

During formal probate, the named executor of the estate files a petition with the county probate court to validate the deceased’s will and receive official appointment to the position. If there is no will, a family member will petition the court to seek and appoint an estate administrator. In either case, the executor or administrator who receives court approval will need to notify all interested parties in the estate before marshaling estate assets and distributing them to creditors and beneficiaries, 

In California, formal probate is necessary when the value of an estate surpasses $184,500 or if the estate includes real estate valued greater than $61,500. In Texas, it is necessary when the estate features real estate valued at more than $75,000.

A formal probate is the procedure itself. For example, where: 

1. A decedent did not leave a will and is survived by any heirs,
2. A decedent left a will instead of a trust
3. Any time an estate is over the minimum probate threshold, and there is not a trust
4. If someone wishes to bring a claim on behalf of the decedent or their estate

Formal probate generally takes several months or even years to complete. Because formal probate is associated with more complex and larger estates, disputes are often more common due to the larger number of assets and beneficiaries that can raise them. 

Informal Probate 

Also referred to as a small estate affidavit in California or informal family settlements in Texas, informal probate allows for the management and distribution of estate assets with minimal court supervision or hearings. Informal probate is usually much quicker and less intensive than formal probate. Because there are fewer court requirements, informal probate is often also cheaper, with fewer court costs and legal fees.

To initiate informal probate, an executor or personal representative of the estate can submit a request through the county probate court. Informal probate is generally an option for estates in the following instances:

• Estates are valued below a specific threshold according to state probate codes, like those listed above. 
• When there are clear lines of heirship and little disagreement regarding the distribution of assets for an estate. For example, if a deceased individual is survived only by their spouse and no other heirs in a community property state like California or Texas, then the estate can likely bypass formal probate to transfer the assets to the spouse.

Because estates that follow informal probate are typically already clear and straightforward, disputes and litigation during informal probate are far less common. However, disputes can still arise among interested parties if a beneficiary believes they should receive a greater share of the estate or a seemingly clear will ends up having ambiguities uncovered. 

What Is Probate Litigation? 

Probate litigation is a lawsuit or legal action filed by an interested party in an estate against another party during the probate estate administration process. Incidences of probate litigation are often carried out by beneficiaries against an executor, administrator, heir, or other interested party.

The goal of probate litigation is often to ensure that beneficiaries receive their rightful inheritance and that the probate process upholds the interests and wishes of the decedent. Probate litigation can be a helpful action in cases where an executor is suspected of misconduct, the will appears to be invalid, and more. 

Common Issues Leading to Probate Litigation

Whether an estate passes through formal or informal probate, there is the opportunity for disputes to arise if an interested party has a concern with the will, believes they deserve a larger share of an inheritance, or disagrees with the administration process. The following are some of the most common types of issues where a probate litigation attorney will likely be necessary. 

Will Contests

A will contest is a petition filed with the court to clarify or dispute the terms of a will. Interested parties can raise a will contest if they feel it’s necessary to ensure that a will is valid and that the administrator takes the appropriate steps to align with the wishes of the testator. However, a party cannot raise a will contest simply because they are unhappy with a will’s provisions—valid will contests occur most often in the following circumstances. 

Mistakes in a will

A will is a legal document and must be written a certain way for it to be valid. If it fails on certain tests, it can be contested and require review by a judge. While the specific requirements for enforceable wills vary by state, they generally share common conditions. A valid will typically necessitates the testator being of legal age and having the intent for the document to serve as a will, often referred to as “testamentary intent.”

Moreover, the testator must physically sign the will, and it must be witnessed by at least two individuals (although some states require more or less). Alternatively, if the will is entirely handwritten, signed, and dated by the testator, it may be considered valid. Any failure to fulfill these conditions can render the will vulnerable to successful challenges to its validity.

Cases of undue influence

Acts of undue influence on a testator can lead to a will contest that has the potential to invalidate the distribution. If one or more of the heirs believe that another person swayed a decedent into dividing an estate a certain way, either through coercion or influence, they may challenge the validity of the distribution and seek to have the assets of the estate distributed in accordance with the decedent’s true wishes.

If an interested party presents a case and evidence, such as communication records or witness testimony, that a portion of the will or whole document was created as a result of undue influence, the court may invalidate either any affected portion or the entirety of the will. 

Mental capacity

An interested party may challenge the validity of a will if an heir or beneficiary believes that the decedent lacked the mental capacity to make sound judgments about how their assets should be divided. In California, under Probate Code Section 6100.5, the criteria for mental competence to create a will are stringent. 

An individual must possess sufficient mental capacity to do the following:

• Grasp that they are in the process of drafting a will
• Understand the full extent and nature of their assets 
• Comprehend the identities and significance of their immediate family members, including living descendants, spouse, and parents, as well as those individuals whose interests are affected by the terms of the will. 

Or more simply put:

• That the testator understands who is in their family and who they are talking to;
• That the testator understands what they have; and
• That they understand the way the new document will change their current plans.

During a will contest, a party interested in the estate may present a case to the probate court with evidence demonstrating mental incapacity on the part of a will creator, such as medical records that identify a serious medical condition at the time of the will’s creation. If the court determines that the claim of incapacity is legitimate, they may invalidate the will or any affected portions and require that the assets of the will be distributed through intestate succession. 

Ambiguity in the will

If there is ambiguity or lack of clarity surrounding the terms or provisions of a will, a petition for instructions may help bring parties together to clarify the interpretation of the language in the document or invalidate the unclear portion for clearer next steps.

Whether you are seeking clarification on distribution or you are disputing a provision, you should contact a skilled probate and estate administration attorney. An experienced attorney will help you determine the next steps in raising the contest, notify the appropriate parties, navigate the mediation process, and more.

Disputes Over Estate Assets

Disputes may arise over a number of different issues, but some of the more common ones we see are over:

• Equalization – For example, if each child is left the estate equally and the administrator just wants to give one person one house and the other person another house without taking the value of the homes into consideration.
• Valuation – For example, when the values of the properties are not accurate. 
• Ambiguity – For example, a will could say that one child receives the house and then the remainder of the estate is divided evenly among the children, and the administrator wants to divide the estate among all children, but the beneficiaries think that the child getting the house wasn’t supposed to get the remainder. 

Oftentimes, these disputes can be resolved through mediation or negotiations to come to terms around asset distribution that can accommodate all parties. However, in more contentious situations, it may be necessary for the process to go through litigation in the courtroom.  

When beneficiaries suspect a personal representative of mismanaging the distribution of assets, they have various legal avenues at their disposal:

• They may consider initiating a lawsuit against the executor or administrator for breach of fiduciary duty. 
• They can petition the probate court to compel the personal representative to distribute the assets as outlined or to take action.
• In serious cases, they can petition the court to suspend or remove them from their role of executor or administrator and appoint a replacement. 

A probate litigation attorney can support in the process by providing mediation or overseeing negotiations for an agreement of a distribution that appeases all sides. If the dispute can not be resolved through negotiations, an attorney may also provide representation in the courtroom to present a case for securing one’s rightful inheritance. 

Claims Against the Estate

During the probate process, creditors may raise claims for debts that they were owed at the time of the decedent’s passing. As claims arise, administrators will have to determine the legitimacy of these claims and how to distribute assets to credits accordingly.

If there are disagreements regarding the validity of creditor claims or the appropriate estate provisions that should go to creditors, litigation may be necessary to resolve these conflicts and determine the rightful distribution of assets. In these cases, it will be up to creditors to present a case for the legitimacy of their claim to a portion of the estate and the executor of the estate to defend against it.

Breach of Fiduciary Duties

Executors and administrators in the probate process are considered fiduciaries and, as a result, have a responsibility to act in the best interests of the estate and its beneficiaries as they manage the estate. These duties include managing assets, paying taxes on the estate, and keeping beneficiaries informed. 

If an executor or administrator fails to act in accordance with the instructions in the will, they fail to abide by the probate code in their state, or if they act against the best interests of the estate, probate litigation can be filed to either have the fiduciary removed or to have them remedy their actions. They also may have to pay the beneficiaries for potential damages, such as compensatory, punitive, double, or treble damages.

Common breaches of fiduciary duty include:

• Conflicts of interest, like self-dealing
• Failure to act impartially, such as distributing assets unfairly to beneficiaries
• Negligence, like failing to pay taxes on an estate or keep required accounting
• Mismanagement of assets, like making irresponsible investments

Let Us Help Navigate Your Probate Dispute

Whether your loved one left a small estate that can pass through informal probate or a more complex estate that must undergo formal probate, there are several different types of disputes that can arise. If you are facing any form of probate litigation regarding an estate, you should consult a probate litigation attorney for support as soon as possible. An attorney can help oversee negotiations, act as a mediator, or provide representation in court to resolve conflicts.

At RMO, our probate estate litigation attorneys have decades of experience in resolving disputes and facilitating successful estate administration. We take a compassionate approach to every case, ensuring that we understand the full context of your situation and the family dynamics surrounding them so we can provide a helping hand while developing a strategy to secure your rightful inheritance. 

Schedule a free consultation with RMO Lawyers today to learn more about your options and how we can support you in the process.