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Explore General Legal Issues

Is Estate Litigation Necessary In Light Of The Probate Process?

by Ralph Griffin

The idea of hiring an estate litigation attorney might seem pretty extreme, especially if you believe the probate process will protect your rights. Also, many people assume probate serves much the same role as litigation, creating a redundancy. You might wonder if it will be necessary to retain the services of an estate litigation lawyer. Take a look at what litigation is in this context and why someone might need counsel.

Estate Litigation vs. Probate

In the strictest sense, every estate goes through the probate system. However, many estates don't meet state-level qualifications for a thorough process. Usually, these qualifications center on the value of the estate.

Typically, the probate court will use a pro forma process. As long as the administrator of the estate handles everything by the numbers and without outside objections, a probate judge isn't going to get too involved unless something looks very wrong with the estate.

For the most part, this system works well. Lots of estates aren't large enough to justify a prolonged probate process, let alone full-on litigation. However, it does have some shortcomings that occasionally lead to lawsuits.

Assets Outside of the Process

Foremost, a lot of assets can move to beneficiaries outside of the probate system. A payable-upon-death benefit for a retirement account, for example, usually doesn't go through probate. Similar issues occur with trusts, even ones created by estate documents.

These issues get thorny if someone believes the assets shouldn't have moved through those channels. For example, a creditor might consider this an attempt to dodge payment. That's often when litigation happens.

Administrative Issues

The administration of an estate is also a common source of litigation. Suppose an executor is supposed to sell the deceased's home and divided the proceeds among several beneficiaries. However, the home isn't in great shape, so the executor uses funds from the estate to perform repairs. This is fine and in keeping with the fiduciary role of the executor.

What happens if the executor decides to pay their spouse's contracting firm to perform the repairs? Worse, what happens if the beneficiaries believe the executor used the estate to line their pockets? They call an estate litigation attorney so they can sue the executor for damages.

Notably, probate doesn't address these issues. An estate usually has coasted through probate if it has arrived at this point. Only a lawsuit can protect the beneficiaries' interests and rights in this scenario.

For more info, contact a local law firm.