Probate & Estate Litigation Attorneys

Probate litigation occurs when there is a dispute over who should be in charge of an estate after someone dies or how distributions should be handled. A will may be contested during the probate process if a party raises valid legal questions regarding the document or the circumstances surrounding its creation.

The probate process varies from state to state, but usually involves the executor of a will filing the paperwork required by the probate court. If an individual dies intestate, or without a will, an executor may be appointed by the probate judge. The executor presents the court with lists of the deceased’s property, debts, and who is to inherit the remaining assets under the terms of the will. If the individual has died intestate the property is distributed to his or her heirs according to state law. The executor manages the deceased’s assets during probate.

Not all estates end up in probate because, in most states, when the deceased’s assets total less than a certain amount, they will pass to his or her heirs free of probate or through a simplified procedure. Additionally, the deceased may have taken steps to avoid probate by passing assets on to his or her heirs by using vehicles like living trusts and joint tenancy.

In most states, a person with an interest in an estate may file a written opposition to the will’s distribution of assets. Generally, an interested person is any party having a claim against the estate (such as spouses, children, heirs, and creditors) or a party representing an incapacitated individual or minor.

Probate litigation often addresses questions related to such issues as:

• The validity of the will;
• Construing the terms of an ambiguous will;
• The claims of children and spouses from prior marriages;
• Whether the will was properly signed;
• The spousal share under an elective share statute;
• Whether there was a later will;
• Creditor claims;
• Whether someone had undue influence over the person writing the will;
• Breach of fiduciary duty by an executor; and
• Whether the deceased was mentally competent to sign the will.

Probate law varies from state to state, but in most cases the person submitting the will to probate court has to satisfy the burden of proof to get it admitted. Once the will has been admitted, the burden of proof for showing that the will is not valid usually shifts to the party that is contesting it. Finally, parties seeking to contest a will only have a limited period to do so and the statute of limitations varies by state.

The attorneys at Thomas H. Curran Associates have the skills and experience necessary to defend the rights of clients involved in probate and estate litigation. The probate process is often complex and parties who are challenging wills, defending wills, suing a fiduciary, or are involved in other probate litigation need to be represented by knowledgeable lawyers to ensure that their rights and assets are being protected.