Probate litigation can turn an otherwise routine estate settlement into years of court battles.
Estate administration is complicated enough. But add a lawsuit to the mix and the entire probate process comes to a grinding halt, costing families time, money and relationships.
The problem is that:
35% of American adults say they or a close family member have had family conflict over estate administration due to a lack of estate planning documents, according to recent statistics. And if those disagreements end up in litigation, the effects ripple through every aspect of probate.
In this article, we’ll cover everything you need to know about probate litigation:
- What Probate Litigation Actually Means
- How Litigation Extends Estate Settlement Timelines
- The Financial Drain Of Court Battles
- Why Families Fall Apart During Probate Disputes
- Strategies To Minimize Litigation Risk
What Is Probate Litigation?
Probate litigation is any time someone contests or challenges part of the estate administration process in court.
It could be a dispute over the validity of a will, disagreements about how the executor is handling the estate or fights between beneficiaries over who gets what.
When families can’t work these issues out on their own, experienced probate litigators step in to represent their clients’ interests before a judge.
The most common types of probate litigation are will contests, executor removal petitions, beneficiary disputes and claims of undue influence or lack of mental capacity.
What most people don’t realize, though, is that even a simple disagreement can end up in full-blown litigation if it’s not handled properly early on.
The Timeline Problem: How Litigation Delays Everything
How long do you think probate litigation can drag out the estate administration process?
The average probate timeline is already 20 months without any hiccups. But throw in a lawsuit and that clock can easily get stuck on years – sometimes even a decade or more for more complex cases.
Why? Well, as soon as probate litigation starts, the normal estate administration process grinds to a halt. The executor can’t distribute assets, sell real estate or make any major decisions until the court sorts everything out. Everything just… stops.
Recent data found that probate cases taking over a year to complete have increased by 65% in the past three years. And while not all of these cases involve litigation, contested estates make up a significant portion of those delayed timelines.
Worst of all?
Beneficiaries who were expecting to use their inheritance to pay bills or other expenses are left twiddling their thumbs waiting. But they can’t touch the assets they should be receiving while litigation is going on.
The Real Cost Of Probate Litigation
Probate litigation is expensive. Period.
Legal fees rack up fast when lawyers are filing motions, taking depositions, gathering evidence and preparing for trial. Most cases these days mean both sides have to hire probate litigation lawyers, so the estate is often on the hook for paying two or more attorneys just to go back and forth arguing.
Let’s look at those numbers.
Attorney fees for probate litigation can run anywhere from tens of thousands to hundreds of thousands of dollars based on how complex the case is and how long it drags out. Throw in expert witness fees, court costs and administrative fees and you’re really starting to talk about some serious expenses.
But here’s the kicker that really riles people up…
All of these legal fees come directly out of the estate’s assets. Beneficiaries ultimately receive less money because a big chunk of it is just gone, sent to lawyers to fight over the estate rather than actually distribute it to family members.
The estate is paying both sides’ legal fees.
read more : Why You Need a Franchise Lawyer Before Signing Any Agreement
How Litigation Tears Families Apart
The financial side is bad enough. But the emotional fallout from probate litigation can be devastating.
Family relationships that took decades to build are destroyed in months after litigation starts. Siblings cut off contact with each other. Adult children are estranged from their parents. Extended family members pick sides.
The reasons behind these battles typically come down to:
- Feelings of favoritism or unfair treatment
- Disagreements over care the deceased received in their final years
- Suspicions the deceased wasn’t mentally competent
- Concerns about undue influence from one side of the family
- Confusion over the deceased’s true wishes
But once lawyers get involved, positions harden and compromise becomes nearly impossible. The original family disagreement now turns into a winner-takes-all courtroom battle.
Even if the litigation finally ends, the family dynamics are forever altered.
The Domino Effect On Estate Administration
Probate litigation doesn’t just affect the obvious tasks. It can impact every aspect of estate administration.
Property maintenance issues if fights prevent real estate from being sold. Bills and taxes pile up. Business interests are put on hold if estate-owned companies can’t make decisions.
Executors can’t properly administer assets during litigation. Investments lose value when held in cash. Properties fall into disrepair. Insurance policies lapse from nonpayment. Estate tax returns need to be filed on time and penalties accrue. Creditors continue collection efforts and may file their own claims.
The executor is in a bit of limbo trying to keep everything afloat while the case drags on.
When Executors Become The Target
Sometimes probate litigation is focused directly on the executor.
Beneficiaries may file petitions in probate court to have the executor removed from their position due to allegations of mismanagement, self-dealing or a breach of fiduciary duties. These cases require the executor to defend their actions and decisions throughout the entire estate administration process.
Even if the executor has done nothing wrong, defending against these claims is time-consuming and incredibly stressful. The executor may also need to retain their own attorney in addition to whatever counsel the estate may have.
But the worst part for executors is that they are typically just trying to do their jobs, but wind up spending more time answering to legal challenges than actually administering the estate.
Preventing Probate Litigation Before It Starts
The best way to deal with probate litigation is to never have to deal with it in the first place.
Proper estate planning with good documentation and solid reasoning will prevent most estate administration disputes from ever even happening. Professional wills, trusts and related estate planning documents that are thorough and include clear explanations help avoid misunderstandings down the road.
So what are the best strategies to avoid probate litigation?
Use Professional Estate Planning – Working with qualified estate planning attorneys to draft wills, trusts and ancillary documents greatly reduces the chances of litigation down the road. Vague language or sloppy documents just invite challenges. Professional documents include language to address common dispute scenarios.
Document Mental Capacity – Especially for older parents and grandparents, documenting mental capacity through third-party medical evaluations when creating estate planning documents is crucial. Evidence of capacity becomes important if later disputes arise.
Communicate With Family – As difficult as it may be, open conversations between family members about estate plans can prevent misunderstandings and hurt feelings after death. Direct communication can clear up questions and explain reasoning.
Include Mediation Clauses – Including mandatory mediation clauses before litigation can give families one more chance to resolve disputes privately. Mediation is often quicker and cheaper than going to court.
Final Thoughts
Probate litigation takes what is already a complex estate administration process and stretches it out for years, bleeding the estate of its assets and destroying family relationships in the process.
The average probate timeline of 20 months triples or more when probate litigation is added to the mix. Beneficiaries see a significant reduction in their inheritance after legal fees gobble it up. Family relationships that took decades to develop are shattered in months.
But it doesn’t have to be this way.
Proper estate planning and professional guidance early on can prevent most probate litigation disputes from even occurring. Family communication and open conversations about the reasons for estate planning decisions help, too. When probate litigation does happen, experienced probate litigators can help quickly and efficiently resolve estate disputes while doing as little long-term damage as possible to the estate and family relationships.
The key is early recognition of warning signs and de-escalation before positions get locked in and litigation becomes inevitable. That’s because once it gets to court, everyone loses – except the lawyers.
