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The most common causes of probate litigation (and how to avoid them)

On Behalf of | Mar 4, 2021 | Estate Planning, Probate Litigation |

When you pass on, the last thing you want is for your children and other relatives to fight over your estate instead of coming together in their time of mourning. Unfortunately, probate litigation is all too common, and it tears families apart. While there’s no way to guarantee that your family won’t fight over your estate plan, there are a few steps you can take to make it less likely.

Lack of testamentary capacity

One of the most common ways of challenging a will is by trying to prove that the testator (the person who created the will) lacked testamentary capacity. This means that the testator was incapable of understanding the full extent of their property, and didn’t have the cognitive ability to understand the significance of their will when they created it.

When you are creating your will, make sure that there is no doubt about your mental capacity. Sign your will in front of competent witnesses who can testify that you were sound of mind.

Think twice before you leave someone out of your will. Even if you leave them something small, it shows that you remembered them – and deprives them of the ability to argue that you forgot who they were due to your mental deficiency.

Leave clear instructions

For both your will and any trusts you may have, make sure that your executor and your trustee know exactly what you expect of them. The less ambiguity and guesswork is involved, the better.

Even if your family members don’t approve of how you’re disposing of your property, as long as there’s no doubt that it’s your desire that it be done that way, they won’t be able to complain. It will make your executor and trustee’s job much easier as well.

It’s always a good idea to consult with an experienced attorney when drafting your will. They will be able to guide you through the process of making it less likely that a lawsuit will arise after you are gone. That way your loved ones can focus on mourning your loss and remembering you, instead of fighting with each other in court.


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