The ownership of some assets can make them exempt from probate, and other estate planning techniques can also keep property out of probate court. If you have questions about your estate plan or about avoiding probate, contact an estate planning attorney for straightforward solutions that will work for you.
Do you have questions about the validity of a will or trust? Do you think litigation may be necessary? We have handled numerous probate litigation cases based on undue influence, competency concerns, and questions regarding executor conduct. For experienced probate litigation and dispute legal services, contact Gorman & Jones, PLC at 877.237.0983.
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When you confront crucial probate litigation questions, contact an team of attorneys that has practiced estate planning, probate law and probate litigation exclusively for a combined 20 years. Contact Gorman & Jones, PLC at 877.237.0983.
For probate litigation legal services in the Phoenix, Arizona area, contact lawyers Andrew P. Gorman or Matthew Mark Jones of Gorman & Jones, PLC. We have handled hundreds of disputes and operate five offices for your convenience. Call 877.237.0983.
Probate Litigation - An Overview
Estate administration and probate litigation can be time consuming and confusing. A competent and experienced probate and estate administration attorney from Gorman & Jones, PLC in Sun City, Arizona, can facilitate this often-difficult process in a timely and effective manner. If you need help in the administration of an estate, contact Gorman & Jones, PLC today.
Probate litigation involves both probate court and civil court. Before or after a will has been submitted for probate, an individual with standing to make a claim attacking the validity of the will can bring that claim before the probate court. A probate judge will hear the claim and determine if there is an issue relating to the will's validity. If there is an issue, the judge will send the claim to civil court.
When to Initiate Probate Litigation
Depending on the state in which the will is to be probated, the timing of raising an objection to a will can vary. In some states, a claim attacking the validity of a will must be brought before the will is submitted to probate. If the claim is not made in that time period, the right to contest the will is lost. Most states, however, allow the will contest to be filed after the will has been submitted to probate. There are usually time constraints for these filing periods. An attorney at our firm will be able to assist in ensuring the timely filing of such an objection.
Common Claims in Probate Litigation
There are myriad reasons to enter into probate litigation. Will contests are raised to challenge the validity of the will. These claims may include:
- Undue influence
- Lack of mental capacity
- The validity of a handwritten (holographic) will
- Failure of the will to meet all of the required formalities, such as the requisite number of witnesses
Aside from will contests, litigation may also arise based on disputes over the administration of assets, a surviving spouse's elective share and asset evaluation techniques.
An issue may also arise if there is a "no-contest" clause within the will. Such a clause states that if an individual named in the will challenges the will, that individual loses all rights to receive anything. While the clause commonly appears in wills, it is important to understand that it is usually narrowly interpreted, and will not be enforced if a contest is brought on good faith.
What to Expect From Probate Litigation
If a probate judge determines that there is an issue relating to the will’s validity, the judge sends the case over to civil court. The process from there mirrors that of any other civil proceeding. The contestant will be required to put forth evidence, witnesses and exhibits to prove the claim.
Even if the contestant wins, the remedies are limited. A judge will order one of the following:
- The will is valid and shall be probated as is
- Portions of the will are invalid, and the valid portions shall be probated as is, while the invalid portions will follow the state intestacy laws (as if the testator had died without a will), if necessary
- The whole will is invalid and the estate will be probated according to state intestacy laws
How to Avoid Probate Litigation
Proper estate planning and the use of "will substitutes" may assist you in avoiding probate altogether. For example, you may put all of your assets in revocable trusts, create joint tenancies with rights of survivorship or designate beneficiaries to retirement and life insurance funds. While these tools may not keep your heirs from litigation after your death, you may at least find a way to control which of your assets will enter probate.
Conclusion
Proper estate planning can help you minimize the risk of probate litigation. If you need help in administering an estate, contact Gorman & Jones, PLC in Sun City, Arizona, to schedule a consultation with an attorney experienced in probate and estate administration..
