While probate is the ordinary public process that settles our affairs when we die, probate litigation refers to legal contests requiring courtroom resolution. Examples of probate litigation include challenges to a will and lawsuits against fiduciaries.
Anger, Confusion and Conflict
With careful planning, solid communication, and respect for the wishes of the deceased, most families avoid probate litigation, though it’s likely they will at some point rely on state probate protocols to supervise the distribution of assets and payment of debts of the deceased. The terminology and particulars of probate vary by state. Most states offer expedited processes depending upon the level of assets involved, and families can expect to wrap up the affairs of a loved one in about a year, unless of course probate litigation becomes a reality:
Under probate law, a probate court will identify the assets of the deceased, decide on the payment of taxes and other expenses, and distribute the property among legal heirs as provided in the will or intestate succession rules. Most matters handled by probate courts, such as admitting wills and assigning executors, are standard and uncontested. Any legal contest that arises due to a person’s death or mental incapacity will be filed in a probate court and can be categorized as probate litigation. This process involves court battles among those still living over issues such as guardianships and conservatorships, powers of attorney, will or trust contests, and living wills.
Family conflicts, misunderstandings and misinterpretations related to the intentions and decisions of the deceased, as well as failed communications between the fiduciaries of an estate (for example the executor or personal representative), and the beneficiaries of the estate are among the triggers for probate litigation. Common examples of probate litigation include:
- Challenges to the validity of a will;
- Suits regarding the construction or interpretation of wills and trusts;
- Contests over the appointment or conduct of a guardian;
- Trust reformation or modification lawsuits;
- Suits brought to terminate a trust because the trust’s purpose has become impracticable; and
- Suits by beneficiaries against a fiduciary, such as an executor or trustee, for failing to act in accordance with the law or a legal document.
Surprises resulting from “non-standard” estate planning decisions can also be the cause for probate litigation. For example, treating children differently or omitting a spouse from an estate plan, tend to incite anger and deep disappointment, with legal action close behind. To curtail frivolous litigation, probate courts follow strict protocols when validating challenges to an estate, and “most states have a strict statute of limitations.”
Probate Bonds
Courts frequently require the representative appointed to handle the affairs of the deceased to obtain a probate bond. The purpose of a probate bond is to guarantee that debts and assets will be properly handled in accordance with state laws and protocols. A probate bond is a type of fiduciary bond, and is sometimes alternatively referred to as an estate, executor, personal representative or administrator bond.
Colonial Surety Company makes it quick and easy to obtain probate bonds of all kinds. A 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. Fiduciaries in every state can efficiently obtain their bonds here:
Probate attorneys can help clients secure court and fiduciary bonds with a few clicks on The Partnership Account® for Attorneys. Just 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.
Colonial Surety 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 bond, trust Colonial: www.colonialsurety.com