What is probate litigation and how do you navigate this process? After the passing of a loved one, it is not uncommon for issues and disputes to arise in regards to that person’s last will and testament. Though there are many causes for these issues, they can all be summed up in the term “probate litigation.” This term refers to the legal process of determining what will happen to the assets of the deceased if the will is questioned for any reason. There are many reasons why probate litigation may occur and there are some basic steps that you should know to get through this process.
- Get help. When you are already dealing with the loss of a loved one, dealing with the strain of a legal fight is a lot to take on. Probate litigation is ultimately, litigation. It is a disagreement that if pursued, will end up being decided by a legal process. A skilled probate attorney can walk you through the process, lay out your options and argue your case. Do not attempt to go through probate litigation alone. If you have lost a loved one and are grieving you may not mentally be ready for a court battle. But if one is necessary, you should build the best team possible to fight on your behalf.
- Understand the basic probate process. Your attorney will walk you through the finer points of probate as they relate to your specific case but it is helpful to understand the general process. As defined by the Florida Bar Association, “Probate is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries. In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries.” Probate is an important process that helps wrap up a decedent’s estate after death, pay his or her debts and then transfers the remaining assets to the designated heirs. Depending on the size of the estate and wishes of the deceased, there are different types of probate such as formal administration, disposition without administration and summary administration that can be utilized. With formal administration and summary administration, an executor or personal representative is responsible for proper court filings, paying the estates debts and many other duties. If a will or estate is uncontested, the personal representative follows all court mandated steps and then the court closes the estate. This is a very general overview of the process. If you are facing probate litigation, any number of things could be happening to disrupt the process: you could be contesting the validity of the will, you could be fighting to have the personal representative removed, and there could be accusations of fraud or abuse. The possibilities are endless. Your probate attorney will look at the facts of your particular situation and guide you through the probate process as it pertains to you.
- Get your facts in order. If you are involved in probate litigation you need to assemble your facts. This may be difficult as you deal with the emotional toll of losing a loved one but it is important to your case. Probate litigation can bring up a lot of emotions during an already difficult time. You need to try to put your emotions aside momentarily and gather as much physical and concrete evidence as possible. You also need to relay to your attorney why you are pursuing litigation and the evidence you have to support your claim. For instance, simply disagreeing with an appointed personal representative is not enough to have him or her removed. Negative feelings between two parties will also not result in removal. You will need strong evidence to disqualify a personal representative. In West Palm Beach, Florida you will have to prove that the personal representative is incapable or unfit of performing the required duties or is not acting in the best interest of the estate. Probate litigation can be difficult but the more organized and focused you are, the more you will help your case.
- Weigh the benefits and consequences of litigation. While every injustice should be addressed, probate litigation often comes with a high emotional and financial toll. Discuss with your lawyer estimated fees and weigh carefully how litigation may impact your family. Talk to your attorney frankly about the possible positive and negative consequences of moving forward and make an informed decision about whether you would like to pursue this course of action.
- If you decide to move forward, you will proceed to court. Both parties will present their arguments in a courtroom and a final decision will be issued by a judge. You will work diligently with your attorney to assemble your case and your attorney will argue vociferously on your behalf. Your attorney will prepare you for this process specific to your situation.
- The judge will issue a ruling. Like any other court case, after hearing both sides, the judge will issue a final ruling. If the ruling is not in your favor you may have the option of an appeal. If an appeal is possible, you will need to move forward within a certain time-frame. Discuss this option with your attorney.
Losing a loved one can be devastating. Trying to navigate a legal battle while grieving can be awful. Do not go it alone; seek experienced counsel. Every situation is unique. Discuss your situation with an attorney and find the right path for you. If you do decide to move forward with litigation your probate lawyer can guide you through the process and help you build the strongest case possible.