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6 common reasons for probate litigation

Parents are often the glue that holds families together even after the kids move out and start their own families. When the parents or loved ones die, leaving behind assets, that glue also dissolves. The family dynamic then shifts. It can occur over time or break apart during the probate process, and it involves the division of assets among beneficiaries, heirs and debtors. It can mean a contentious dispute with probate litigation.

While the details of each estate are different, there are recurring reasons for this to happen:

  1. Picking the wrong executor: The executor’s role involves following through on the estate planning arrangements, but this involves a fair amount of paperwork, managing family pressures and executing the decedent’s wishes. Sometimes the person selected is deceased or no longer able to handle the job; sometimes, they do not have the right disposition; sometimes, they didn’t want the job in the first place. The wrong executor can lead to complications.
  2. Breach of fiduciary duty: The executor has the fiduciary duty to follow the will or estate plan. Others may believe that the executor is not doing their job or is guilty of wrongdoing while in their role. Beneficiaries may file to remove the executor, claiming the executor failed to fulfill their obligations.
  3. Contested will: There may be more than one version of the will. Often this happens when changes are made, or there is a change in the family where the decedent remarried or did not update the plan. Other changes occur among the beneficiaries that make the will obsolete or partially obsolete.
  4. Assets in other states: Probate laws vary by state, and they may conflict with those of the laws of the decedent’s home state. For example, the executor will need to address a ski lodge in Colorado following that state’s laws.
  5. Fighting creditors: The estate must address all debts before distributing assets to the beneficiaries. However, the beneficiaries or heirs may dispute the amount owed or whether there is a debt. The creditor could be a government organization, a business or an individual.
  6. Not hiring an attorney: Not all estate planning attorneys handle probate litigation, but it is wise to work with one if there is the potential for disputes or probate litigation. These legal professionals can also provide knowledge and experience that guides beneficiaries through the process.