When a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration where the assets of the deceased are managed and distributed.  If your loved-one owned his or her assets through a well drafted and properly funded living trust, it is likely that no court-managed administration is necessary, though the successor trustee needs to administer the distribution of the deceased’s assets.  The length of time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court. 

Every probate estate is unique, but most involve the following steps:

• Filing of a petition with the proper probate court.
• Notice to heirs under the Will or to statutory heirs (if no Will exists).
• Petition to appoint Executor (in the case of a Will) or Administrator for the estate.
• Inventory and appraisal of estate assets by Executor/Administrator.
• Payment of estate debt to rightful creditors.
• Sale of estate assets. 
• Payment of estate taxes, if applicable.
• Final distribution of assets to heirs.

Wills

A properly drafted will should clearly identify all beneficiaries and leave no ambiguity surrounding the intentions of the Testator.  Unfortunately, estate planning documents, whether wills or trusts, do not always clearly reflect the intentions of the testator.  Even if the language of the documents is clear, parties may have other reasons to initiate a lawsuit or object to a will. 

When someone with standing objects to a will or a trust, the estate might have to be litigated.  This is sometimes referred to as a “will contest.” These disputes can be complex and should be navigated by attorneys with expertise in such matters, including an intimate knowledge of probate court rules and procedures.

Probate Courts

Typically, if a will is involved, a probate court will determine whether or not it is valid and should be executed. If the will is found to be valid, the court will oversee the allocation of assets and will ensure that the named executor carries out the wishes of the decedent in a lawful and timely manner. The court also oversees the distribution of assets if the testator, or deceased person, died intestate, without a valid will.

Who Can Contest a Will?

A protesting party may only contest a will if he or she falls within one of two categories.  First, those mentioned in the will, known as the will’s beneficiaries, may formally challenge it.  Alternatively, if the challenger stands to inherit according to laws of intestacy (such as a family member), but is not named in the will, or is expressly disinherited, he or she may seek to contest.  If one is not named as a beneficiary in the will and is not a family member eligible for inheritance, known as a distributee, he or she may not pursue a formal challenge.

In order to successfully contest a will, the protesting party must prove that the will is invalid.  There are several scenarios under which a will may not be admitted, including but not limited to:

• Undue influence – If the testator altered his or her will under the threat of force or other persuasion, it is said that he or she was under undue influence.
• Mental incapacity – Similarly, if the testator is shown to have been in an incapacitated or otherwise impaired mental state at the time the will was executed, it may be considered void. 
• Will does not follow procedure – A will may be contested if it was signed in the absence of witnesses, was not signed by the testator, or is otherwise not executed according to the law.
• The will was revoked – If the will was revoked after it was signed, it will also be considered void.  A subsequent will, marriage, or legal action may also revoke a will.
• Fraud – Lastly, the protesting party can contest if he or she has proof that the testator was deliberately misled by a third party. 

When there is no Will

In instances where no valid will exists then intestacy laws which indicate what assets each family member is to receive go into effect.  Typically, inheritance is granted to family members according to a specific order.  Once the decedent’s debts have been paid from the estate, the remaining assets are distributed among the testator’s spouse, children, parents, siblings, grandparents, grandchildren, or great-grandchildren.  Family members who are half-blood relatives are generally considered as if they were full-blood.

Without the guidance of an estate litigation attorney, the web of rules involved in the process can be overwhelming and lead to serious errors or even forfeiture of one’s rights.  Whether you are an executor, trustee, beneficiary or someone improperly left out of a will, contact our estate litigation attorneys to discuss your options.