The time after a relative’s passing can be a stressful one, especially if the relative died with a Will that is in dispute by family members. Or if there is a missing or lost Will. If the relative died without a will, the situation can become even more contentious. In either case, after a loved one passes his or her estate will need to be administered in Probate court—and any number of issues may arise that require legal assistance from an experienced Probate attorney.
An heir, executor, administrator, beneficiary, or trustee of an estate, should keep the following points in mind before and during the Probate process:
Common Types of Estate Litigation
The Probate process can be a confusing time when family members are over-extended and wrought with grief as a result of their loss. Certain types of claims or disputes may arise which can affect the outcome of descent and distribution of family assets:
- Will contests and disputes
- Lost or missing wills
- When there is no will as with intestate estates how should the estate be distributed among heirs?
- Trust registration, administration and management
- Who determines the suitability of an administrator or executor, how and when, and other questions about the qualification or appointment process?
- Claims against trustees, executors, administrators, and personal representatives for breach of fiduciary duty and waste
- Questions about the relative’s testamentary capacity, physical and mental health or unsound mind
- Circumstances of Undue Influence upon the relative making the will, trust or other instrument
- Instances of fraud when writing or executing the will, trust or other instrument
- Claims by third party creditors, and the specific procedure governing them
- Surety and bonding guarantees
- Life insurance proceeds and disbursement
One of the most common types of estate claims is the will contest.
What is a Will Contest?
A will contest can arise under a number of circumstances, but there may be restrictions as to who can bring the claim, such as issues related to standing. A will contest can take place when a will is missing or lost, or when family members feel there has been fraud or undue influence upon their loved one while the will was being drawn up. A loved one’s lack of testamentary capacity during the process of making their will can also give rise to a will contest. Many will contests arise after new testamentary instruments are executed, or old ones are amended, when a relative becomes sick, feeble or otherwise in weak health or disposition. Will contests are adversarial disputes which are prosecuted in circuit court and not in the probate court.
How A Lawyer Can Help
Missing wills and will contests are just the tip of the iceberg when it comes to disputes during the administration of an estate in Probate. Other claims include third party creditor’s claims, which also can end up in a separate lawsuit altogether in circuit court. Suits by heirs and beneficiaries for breach of fiduciary duty against administrators and executors can occur, especially when family members have evidence the fiduciaries committed waste (mishandling, mismanagement or other diminution of assets) against the estate, resulting in lost value and less inheritance for the heirs. Of course, not all of these claims are meritorious, and a vigorous defense may be necessary in some circumstances.
If dealing with an administrator, trustee, executor or other personal representative of a loved one’s estate—a certain level of fiduciary duty may be at stake. Fiduciary duty to an estate may even involve the execution of some kind of bond, surety, or other insurance to assure that all assets are preserved until estate is settled. This bond might be a source of recovery fund for the heirs when circumstances demonstrate fiduciary duty has been breached.
Contact an experienced Probate attorney to discuss rights and options.