Probate is the court proceeding that takes place to administer the estate of a deceased person. It can happen with or without a will. If there is a will, someone must file that document with the court. The probate process is administrating the estate of the person who died, whether with or without a will.
Probate can become complicated, particularly if the decedent did not leave a will. If they do not make their wishes clear, there are assets and potential beneficiaries. Disputes will likely ensue, often resulting in probate litigation if the parties cannot agree.
Examples of probate litigation are:
- When potential beneficiaries contest a will
- When it is unclear whether the will is valid
- When a potential beneficiary is contesting something in the will, like undue influence
What is undue influence?
Undue influence means that someone influenced the person who wrote the will when the person was not in their full mental capacity to think and decide for themselves.
What are other reasons for disputes in probate?
Other reasons for probate litigation are a beneficiary seeking to remove the executor of the decedent’s will because of a breach of their fiduciary duty. In that case, the person must submit proof to the court that the executor breached their duty, in what capacity and when.
Intestate succession laws
If a person dies without a will, the court will appoint an executor, and the decedent’s assets will be distributed among their closest relatives based on intestate succession laws, which are the laws that dictate to whom a decedent’s assets go if they did not leave or have a will.
The probate process is often time-consuming and lengthy, so people choose to do estate planning with attorneys and try to stay out of the probate process, which is possible.
