Estates that go through probate can do so easily if the estate planning was done well; probate courts can do basic tasks like identifying assets of deceased individuals, determining the payments that need to be made for taxes and other expenses and assigning executors in uncontested situations relatively expediently. However, there are many cases where challenges arise, and probate litigation is the result.
Situations in which probate litigation arise include:
- When a will’s validity is challenged
- When there is a suit regarding the wording or construction of a will or trust
- When there is a dispute about whether or not a guardian needs to be appointed for someone for whom power of attorney has not been executed
- Lawsuits regarding the modification or reformation of trusts
- Suits that seek to terminate a trust based on a claim that the purpose of the trust has become impractical
- Suits that beneficiaries file against a fiduciary based on a claim that the fiduciary failed to act in accordance with legal requirements
There are key risk factors for probate litigation. One is sibling rivalry. Just like in movies, when siblings are at odds, they are probably going to quarrel over who gets what. Second marriages are also a risk factor, pitting the children of a first marriage against the children of a second marriage and against the second wife or husband. This is one reason why individuals who marry multiple times are wise to secure an ironclad premarital contract, as doing so can help prevent probate litigation. Finally, estate plans with significant differences in the treatment of the deceased’s children or that create trusts that are viewed as unworkably complex can spur probate litigation.