The probate process after the passing of a loved one can be overwhelming and emotional. Whether the individual who died created a comprehensive estate plan or not, it can be difficult for everyone involved to agree.
In some instances, litigation or raising concerns during the probate process may be necessary to ensure that the proceedings reflect what your loved one wanted and what is best for your family. Here are a few circumstances that may require litigation:
Concern for the validity of the estate plan
Especially if the testator was aging when the estate plan was made, there may be concerns for the validity of the documents. You may feel that the decisions in the will don’t accurately reflect who the testator was or simply don’t make sense. These may be signals that there was:
- Undue influence
- Competency concerns of the testator
Misconduct during probate
Similarly, concerns may arise about misconduct that happens during the probate process. Often, there are issues with those who have a significant amount of power, like the personal representative/executor, administrator or trustee. These people have the responsibility to properly carry out the decisions of the testator, but that also means that they have the opportunity for misconduct, like a breach of fiduciary duty or the misappropriation of assets.
Disagreements over decisions
Sometimes, estate plans are not updated for years. This may result in decisions that no longer properly reflect what the family needs. There may be difficulties with larger assets, especially ones that require active participation from the beneficiaries, like a family business.
One important area where the right decision is critical is the guardianship of children and other dependents. If the person named as their guardian in the estate plan is unable to care for them or if you feel there is a better choice, litigation may be necessary.
These examples are only a few of the reasons that probate litigation may be necessary. If you feel that you need to step up and say something about your loved one’s estate plan, talk with a legal professional to learn more about your rights and how to proceed.