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Common factors that may lead to probate litigation

Probate disputes or litigation is often a last recourse for families of a recently passed loved one. In fact, countless legal documents and wills are drafted precisely to avoid contested probate matters. The classic motivations behind extended litigation may be there: resentment, greed and revenge. However, more often than not, these factors don’t play a role in probate litigation. Rather, the disputes stem from circumstances which, while avoidable prior to the person’s death, are now thrust to the forefront.

While there may be a multitude of reasons for a probate disagreement, some factors tend to appear in cases more frequently than others.

Common factors that lead to probate disputes

The existence of a “nonstandard” estate plan

  • Several features may differentiate an estate plan from the norm, including ones that exclude certain members of the family or treat them differently or unequally, or plans that are extremely detailed in an unusual, even vindictive manner.

Multiple marriages

  • Cases involving a person that has remarried can be difficult, particularly if there isn’t a clearly established prenuptial or postnuptial agreement. In these cases, the children from the prior marriage can take umbrage with the existing will. In addition, other matters such as life insurance policies and other assets can be a cause for disagreement between surviving members.

Fiduciary disagreements

  • Choosing the right executor of an estate can be a daunting task. The fiduciary needs to be able to communicate clearly, be trustworthy and be able to act independently yet in the best interests and spirit of the will. Choosing a fiduciary who will be unable to rise to the position can create disagreements down the line.

Poor planning

  • This can seem like a catch-all term, but it’s true. Poor estate planning leads to disagreements, which results in litigation. That’s why it’s important to connect with experienced estate planners and really sit down and think through the potential consequences of a faulty plan.

However, even with careful planning, a dispute may occur. In these situations, individuals would be well placed to explore their legal options, including contacting an attorney to handle the disagreement.

Source: A Message to Clients: Avoiding Probate Court Litigation By Karen S. Gerstner, American Bar Association, AmericanBar.Org

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