What Does a Probate Litigation Attorney Do?

Clients hire probate litigation attorneys to handle executory estate matters and property disputes. An executor is a person who manages the deceased individual’s estate after their death. According to probate law, the executor must complete ongoing legal or financial transactions with the deceased person’s assets. If a probate litigation attorney works with an executor, they may contact the estate’s beneficiaries. They will schedule a meeting with the property if there is any outstanding dispute with the property. The meeting will discuss the executor’s findings regarding the deceased person’s estate. If there are any outstanding legal issues, they will discuss which parties must consent to any proposed changes in probate law. The possible options for the estate’s future require the probate litigation attorney’s input.

When a person dies, their assets are divided among their beneficiaries and go through probate court. If the deceased person’s will has provisions that are not legal, the probate litigation attorney may represent the beneficiaries in court. If there is a dispute among those entitled to inherit the assets, they may consult a probate litigation attorney. The inheritance rights of children and spouses are protected under probate law and sometimes may be challenged by siblings or other family members. The probate litigation attorney will assist in establishing an appropriate legal strategy that follows state law while protecting their client’s interests.

What Does a Probate Litigation Attorney Do?

Understanding Probate

Before diving into the specifics of what a probate litigation attorney does, it’s essential to understand what probate is. Probate is the judicial process through which a deceased person’s will is validated, and their estate is administered. If there is no will, the estate is distributed according to state intestacy laws. The process involves several steps, including:

1. Filing a Petition: A petition is filed in probate court to start the process. This is usually done by the executor named in the will or by an interested party if there is no will.
2. Notifying Heirs and Creditors: The court requires notification of the decedent’s heirs and creditors to allow them to make claims against the estate.
3. Inventory of Assets: The executor or personal representative must compile an inventory of the decedent’s assets.
4. Paying Debts and Taxes: Any outstanding debts and taxes must be paid before the estate can be distributed.
5. Distributing the Remaining Assets: Once all debts and taxes are settled, the remaining assets are distributed to the beneficiaries according to the will or state law.

The Role of a Probate Litigation Attorney

Probate litigation attorneys come into play when disputes arise during the probate process. Their roles are diverse and multifaceted, often encompassing the following:

1. Will Contests: One of the primary roles of a probate litigation attorney is to handle will contests. A will contest occurs when an interested party challenges the validity of a will. Common grounds for contesting a will include:
   • Lack of Testamentary Capacity: Arguing that the decedent did not have the mental capacity to make a valid will.
   • Undue Influence: Claiming that another person unduly influenced the decedent to create or alter the will in their favour.
   • Fraud or Forgery: Alleging that the will was forged or that the decedent was deceived into signing it.
   • Improper Execution: Asserting that the will does not meet the legal requirements for execution, such as not being correctly witnessed.
2. Breach of Fiduciary Duty: Executors and administrators have a fiduciary duty to act in the best interests of the estate and the beneficiaries. Probate litigation attorneys represent parties in cases where there is an allegation of breach of this duty. This can include mismanagement of estate assets, failure to follow the terms of the will, or self-dealing.
3. Disputes Among Beneficiaries: Conflicts can arise among beneficiaries over the distribution of assets, interpretation of the will, or other estate-related issues. A probate litigation attorney mediates these disputes and, if necessary, represents their client in court to seek a resolution.
4. Claims Against the Estate: Creditors may make claims against the estate for debts owed by the decedent. Probate litigation attorneys assess the validity of these claims and represent the estate or beneficiaries in disputing or negotiating them.
5. Intestate Succession: When a person dies without a will, their estate is distributed according to state intestacy laws. Disputes can arise over the rightful heirs or the interpretation of these laws. Probate litigation attorneys guide clients through these complexities.
6. Guardianship and Conservatorship Disputes: In cases involving incapacitated individuals or minors, probate litigation attorneys handle disputes related to the appointment and conduct of guardians or conservators.

Skills and Expertise of a Probate Litigation Attorney

To effectively handle the diverse and complex issues that arise in probate litigation, attorneys in this field must possess a specific set of skills and expertise, including:

1. In-Depth Knowledge of Probate and Estate Law: Probate litigation attorneys must have a thorough understanding of the legal principles governing wills, trusts, and estate administration.
2. Litigation Skills: Since many probate disputes end up in court, strong litigation skills are essential. This includes the ability to gather and present evidence, cross-examine witnesses, and argue persuasively in court.
3. Negotiation and Mediation: Not all probate disputes require litigation. Effective probate litigation attorneys also excel in negotiation and mediation to resolve conflicts amicably when possible.
4. Attention to Detail: The probate process involves meticulous attention to detail, from ensuring all legal documents are correctly filed to verifying the validity of a will.
5. Analytical and Problem-Solving Skills: Probate disputes often involve complex financial and familial issues. Attorneys must be able to analyze these issues critically and develop effective strategies to address them.
6. Communication Skills: Clear and compassionate communication is vital, as probate litigation often involves sensitive family matters and grieving individuals.

The Importance of Probate Litigation Attorneys

Probate litigation attorneys play a crucial role in ensuring that the probate process is fair and just. Their importance can be highlighted in several ways:

1. Protecting the Decedent’s Wishes: By contesting invalid wills or defending valid ones, probate litigation attorneys help ensure that the decedent’s wishes are honoured.
2. Upholding Beneficiaries’ Rights: Beneficiaries may be unaware of their rights or how to protect them. Attorneys advocate for beneficiaries, ensuring they receive their rightful inheritance.
3. Ensuring Fair Administration: Executors and administrators are held accountable for their actions, ensuring they fulfil their fiduciary duties and manage the estate properly.
4. Resolving Complex Disputes: Probate litigation attorneys have the expertise to navigate and resolve the complex disputes that can arise during the probate process, providing clarity and resolution in often contentious situations.
5. Providing Legal Guidance: The probate process can be confusing and overwhelming. Attorneys provide essential legal guidance to executors, administrators, beneficiaries, and other interested parties, helping them understand their rights and responsibilities.

Is a probate litigation attorney the same as a probate litigation lawyer?

Many use the terms probate litigation attorney and probate litigation lawyer interchangeably, but there are a few notable differences between the two. A probate litigation lawyer is similar to a general practitioner who takes on various cases. A probate litigation attorney, on the other hand, is usually focused on one area of the law. This usually means they are more knowledgeable about that particular aspect of law than someone who does not solely practice in that area. For example, an attorney who handles will trusts knows much about the law surrounding this type of case. They may also handle all probate matters to ensure each client’s case is managed correctly.

What are the duties of a probate litigation attorney?

Probate litigation attorneys have many duties and responsibilities that must be met to protect their client’s interests. Among these duties, diligent research funding, a probate issue, is key. Lawyers must familiarize themselves with all relevant statutes, procedural rules, and regulations related to the probate matter. The attorney must also understand the facts of the case and whether or not any potential conflicts of interest may arise when dealing with different parties. The lawyer’s other duties and responsibilities are also necessary to properly represent the client’s interests. First, the lawyer must understand the client’s goals and interests. To do this, they must listen carefully to what the client tells them they want to be done with their estate and how far-reaching those wishes are.

When do I need to hire a probate litigation attorney?

A probate litigation attorney will be needed whenever there is a dispute over the contents of the estate plan. This may happen because of the deceased person’s will instructions or because someone wants to contest the instructions of their parent’s estate plan. An attorney may also be needed if someone decides on an incapacitated individual’s finances. There may be disputes about whether specific parties receive a distribution, who pays taxes, and other such issues.

An attorney is also needed when there are questions about whether the personal representative or executor used their authority correctly. This often means the representative or executor is not managing the estate according to legal guidelines. They may have failed to pay income taxes or could not file appropriate documents with the probate court.

Conclusion:

A probate litigation attorney has several responsibilities and duties to their clients. To meet those responsibilities, they must thoroughly research the law and facts related to their client’s case. They must pay close attention to the client’s instructions regarding the case and be careful not to commit any ethical violations. The attorney must also be sure that all statutory, procedural, and fee requirements are met so that they can adequately represent the interests of their clients.