Explaining Probate Litigation
Although most families at some point experience the ordinary public process of probating the affairs of a deceased loved one, they will avoid probate litigation, which only becomes necessary in the event of a dispute. The absence of clear plans and communications, sudden or surprising changes, festering conflicts, and mistrust tend to pave the path to lengthy, costly, and disruptive courtroom battles. Read on for an overview of probate litigation.
Legal Challenges That Require Court Intervention
As attorneys at Lewis Van Sickle explain: “Probate litigation refers to legal challenges that arise during the probate process, which is the legal procedure used to distribute a deceased person’s assets. Unlike uncontested probate, which proceeds smoothly through the courts, litigation involves disputes that require court intervention.” The most common reasons for probate litigation include:
- Disputes over the validity of a will
- Accusations of undue influence
- Concerns about an executor’s conduct
- Disagreements among beneficiaries
- Claims from creditors or omitted heirs
If probate litigation becomes necessary, the guidance of an experienced attorney is critical. Attorneys at Mandelbaum Barrett PC remind us that emotions are running high upon the death or incapacitation of a loved one, so supporting families to make “rational, informed decisions” during probate litigation is key. In addition to having expertise in probate law, effective probate litigation attorneys are typically also skilled in navigating complicated and strained family relationships, and advocating for vulnerable individuals.
To initiate probate litigation, a petition is filed with the probate court. Specific examples of issues that may trigger a petition include:
- Challenges to the validity of a will, including accusations it was changed unfairly
- Objections about how the executor is handling an estate
- A creditor demanding swift repayment
Typically, after a petition has been filed, and all involved parties notified, the case becomes active. The court pauses the ordinary process of probate pending resolution. Disputes proceed through discovery and evidence gathering. Unless settlement occurs, the case moves to trial, and ultimately a ruling by the court:
- The probate judge listens to arguments, reviews evidence, and ultimately makes a binding decision.
- Once the trial concludes, the judge issues a ruling that may confirm or overturn the will, remove an executor, award financial compensation, or determine how assets are distributed.
- After the court rules, the probate process either continues or concludes….The court’s decision determines what actions must follow and how the estate will be managed….For example:
- If a will is upheld, assets are distributed accordingly.
- If a will is invalidated, the estate may pass by intestacy.
- If an executor is removed, a new one is appointed.
- If damages are awarded, they’re paid from the estate.
Probate Bonds Made Simple
It’s common for probate courts to require fiduciaries, such as executors, personal representatives, and administrators to obtain probate bonds. Essentially, a probate bond serves as a guarantee that the fiduciary will properly handle the debts and assets of the estate of the deceased in accordance with the law. Attorneys at Heiligman & Mogul, P.C offer this overview of how probate bonds work to protect the interests of the estate and beneficiaries:
- A probate bond, also known as an estate bond or surety bond, …serves as a financial guarantee for the actions of an executor or administrator (personal representative). The bond protects the interests of beneficiaries, creditors and others by ensuring the personal representative will administer the estate according to the law and the wishes outlined in the will….Should this person or institution mishandle the estate—by misappropriating funds, failing to pay off debts, or violating any legal obligations—the bond provides a financial recourse for the injured parties.
- If a claim is made against the bond and found valid, the bonding company will compensate the claimants, and the executor will be responsible for reimbursing the bonding company. This mechanism mitigates risk for beneficiaries and reinforces accountability among individuals tasked with managing estates.
Courts set the amount of a probate bond, generally based on the size of the estate and any other pertinent factors related to local probate protocols and the circumstances of the deceased. The probate bond is paid for by the fiduciary appointed to handle the estate (e.g. the executor, administrator or personal representative). However, it is not necessary to pay the full amount of the probate bond. To get a probate bond, you work with a reputable surety bond company and pay a small percentage of the total bond amount.
Nationally recognized Colonial Surety Company makes it quick and easy to obtain probate bonds of all kinds. Our user-friendly online service allows you to quote and obtain a bond that is instantly available to download or e-file with the probate court.
Complimentary Bond Service for Probate Attorneys
Help clients in any court in the country to quickly secure fiduciary or court bonds with just a few clicks on The Partnership Account® for Attorneys. Simply select the bond needed, send it to your client for payment, and then download, e-file or print the bond.
Our fiduciary bonds include: administrator, estate, executor, guardian, personal representative, probate, surrogate, trustee, conservator and the list goes on.
Court bonds include: appeal, supersedeas, injunction, replevin, receiver and more.
In business since 1930, Colonial Surety Company is rated “A Excellent” by A.M. Best Company, U.S. Treasury listed, and licensed for business everywhere in the USA. Our customers have awarded us a 4.8 Trustpilot score. Whenever and wherever you need a fiduciary, court, surety or fidelity bond, trust Colonial Surety Company: www.colonialsurety.com
