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A will contest can result in a significant delay in the distribution of a loved one’s assets. Also, because the costs of will contest are paid out from the estate, the available funds can be significantly depleted.
Frequently Asked Questions about Probate Litigation
Q: What is probate?
A: Probate is the process by which a court determines whether or not a will is valid.
Q: How can an attorney assist me in the probate process?
A: Probate laws vary state by state, and the process itself can vary county by county. A knowledgeable and experienced probate attorney understands the nuances in the law and knows how to staunchly advocate for his or her clients. The ways in which a probated will can result in litigation are numerous. An attorney can explain the proper methods of estate administration and can assist in a will contest or other form of probate litigation.
Legal Information About Probate Administration
Many people have unfounded fears about probate. With the help of an experienced law firm, probate administration can usually be accomplished in a smooth and efficient manner.
At Jones & Skivington, our attorneys provide a full range of probate services. We assist executors in wrapping up the estate's affairs, prepare and file tax returns, and resolve any problems. We also pursue and defend litigation involving the probate administration process.
Contact a Lawyer
For a free consultation with Jones & Skivington, call (866) 721-1730 toll free or send us an e-mail.
Our firm has offices in Geneseo, Livonia and Scottsville, New York, to serve you.
Information about probate administration of a general nature appears below.
Probate Litigation - An Overview
Estate administration and probate litigation can be time consuming and confusing. A competent and experienced probate and estate administration attorney from Jones & Skivington in Geneseo, New York, can facilitate this often-difficult process in a timely and effective manner. If you need help in the administration of an estate, contact Jones & Skivington today.
Probate litigation involves both probate court and civil court. Before or after a will has been submitted for probate, an individual with standing to make a claim attacking the validity of the will can bring that claim before the probate court. A probate judge will hear the claim and determine if there is an issue relating to the will's validity. If there is an issue, the judge will send the claim to civil court.
When to Initiate Probate Litigation
Depending on the state in which the will is to be probated, the timing of raising an objection to a will can vary. In some states, a claim attacking the validity of a will must be brought before the will is submitted to probate. If the claim is not made in that time period, the right to contest the will is lost. Most states, however, allow the will contest to be filed after the will has been submitted to probate. There are usually time constraints for these filing periods. An attorney at our firm will be able to assist in ensuring the timely filing of such an objection.
Common Claims in Probate Litigation
There are myriad reasons to enter into probate litigation. Will contests are raised to challenge the validity of the will. These claims may include:
- Undue influence
- Lack of mental capacity
- The validity of a handwritten (holographic) will
- Failure of the will to meet all of the required formalities, such as the requisite number of witnesses
Aside from will contests, litigation may also arise based on disputes over the administration of assets, a surviving spouse's elective share and asset evaluation techniques.
An issue may also arise if there is a "no-contest" clause within the will. Such a clause states that if an individual named in the will challenges the will, that individual loses all rights to receive anything. While the clause commonly appears in wills, it is important to understand that it is usually narrowly interpreted, and will not be enforced if a contest is brought on good faith.
What to Expect From Probate Litigation
If a probate judge determines that there is an issue relating to the will’s validity, the judge sends the case over to civil court. The process from there mirrors that of any other civil proceeding. The contestant will be required to put forth evidence, witnesses and exhibits to prove the claim.
Even if the contestant wins, the remedies are limited. A judge will order one of the following:
- The will is valid and shall be probated as is
- Portions of the will are invalid, and the valid portions shall be probated as is, while the invalid portions will follow the state intestacy laws (as if the testator had died without a will), if necessary
- The whole will is invalid and the estate will be probated according to state intestacy laws
How to Avoid Probate Litigation
Proper estate planning and the use of "will substitutes" may assist you in avoiding probate altogether. For example, you may put all of your assets in revocable trusts, create joint tenancies with rights of survivorship or designate beneficiaries to retirement and life insurance funds. While these tools may not keep your heirs from litigation after your death, you may at least find a way to control which of your assets will enter probate.
Conclusion
Proper estate planning can help you minimize the risk of probate litigation. If you need help in administering an estate, contact Jones & Skivington in Geneseo, New York, to schedule a consultation with an attorney experienced in probate and estate administration..
