Probate is the process of distributing a deceased person’s (“decedent”) estate if the person had a will or died without any estate plan at all (died “intestate”). If a person dies intestate, then the distribution of their estate is set by statute and depends on the marital status of the individual and the number of children and/or relatives of the decedent. Probate litigation regularly arises between the estate and heirs, beneficiaries, creditors and omitted children and spouses. Another typical issue that arises in this area is when a beneficiary claims that the executor of the probate estate has breached a fiduciary duty and that breach impacts or will impact that person’s distribution from the estate.
Another common area of probate litigation is when someone contests a will. These “will contests” typically claim that someone unduly influenced (“undue influence”) the decedent when he/she created the will, that the person who created the will did not have the requisite testamentary (mental) capacity to create a will, or that the statutory formalities in creating a will were not met.
It is important to have an experienced attorney on your side if you wish to file a lawsuit or if a lawsuit has been filed against you. Prior to filing a lawsuit, your attorney should discuss the strengths and weaknesses of your potential claim as well as what you and/or the estate stand to gain (or lose) in filing or fighting a claim.