It’s important to know what probate litigation means. Simply stated, “probate” is the process of administering the assets of a deceased person, either according to the terms of a will, or, when there is no will, according to state intestacy laws. A common misconception is that probate is often a routine and simple process. While that may be true in some estates, probate can become complicated by unanticipated including but not limited to: disputes over the terms of the will or the application of intestacy laws; distribution of separate vs. community property; rights of putative children in light of adoption, rights effected by divorce, rights effected by subsequent remarriage, concern regarding exercise of fiduciary duty of the personal representative, etc.
According to Nevada’s probate law, the duly appointed Personal Representative will identify the assets of the deceased, decide on payment of taxes and other incidental expenses, and distribute the property, with court approval, among the legal heirs or beneficiaries pursuant to the intestacy laws or the terms of the will.
Probate litigation begins when a dispute arises as the terms of the decedent will or the distribution of a decedent’s estate. Normally, this will occur by the filing of an objection to the initial petition for probate of will or for appointment of Personal Representative by a will beneficiary or heir to the estate. Trust or probate litigation, like any other litigation, occurs in a courtroom before a judge, and in some instances, a jury.
There are many reasons why litigation arises in probate court. Estate administration problems, breaches of fiduciary duties, and improper distribution of assets often lead to litigation. A personal representative must act in good faith and must administer the estate and distribute assets as required under the will and by law. The same is true of a trustee under a trust.
Will contests are the most common form of probate litigation. A will contest involves an individual who had something to gain or lose from the invalidation of the will. However, strict time limitations are enforced as to when the individual must file these claims. The assistance of experienced legal counsel is often required to comply with filing deadlines in a timely manner and to preserve the litigation effectively. The most typical reasons wills are contests or trusts or challenged include:
- Claims of undue influence
- Breach of fiduciary duties by the executor, personal representative, or professionals
- Disputes over disposition of assets or property
- Lack of timely or proper inventory or assets
- Omission of creditors
- Improperly executed will or trust
Importantly, the best tool to avoid trust or probate litigation is maintaining up-to-date and valid estate documents such as a will and trust. Several estate planning methods allow an estate to pass without the requirement of probate. Another way to avoid trust or probate litigation is to encourage open and honest dialogue between family members. If the family understands the wishes of the testator or the trustor, family members are less likely to initiate litigation based on the will or trust.