Protect Your Family From the Perils of Probate

Probate litigation can be described as any attack upon the legitimacy of a Last Will and Testament, either through challenging the appointment of a representative, or an aspect (or the entirety) of the will itself.

There are many viable reasons to pursue litigation against the fulfillment of a will, including factors that may have influenced the will’s contents unfairly such as being forced to amend it under duress, having limited mental faculties/being extremely suggestable during an amendment, or intentional/tortious interference with an expectancy of inheritance (in short, denying someone their legitimate birthright or previously guaranteed inheritance through fraudulent means).

In short: if you have a will, then you must deal with the potential of probate litigation, and the consequences it may bring.

Understanding Probate

The first step to countering the potential of probate litigation in estate planning begins with actually understanding probate. When a person dies, their will – if written and legitimized – will go through a probate court for the final decision on whether it should be executed. The court appoints an executor to be in-charge of seeing to it that all the will’s legitimate wishes are fulfilled.

You may choose your own executor before you die, but even then, it is the court’s final decision whether to approve of your choice.

If by any means the probate court decides that your will is illegitimate, then typically measures will be taken to distribute your possessions as per the state’s intestate succession law. In California, for example, if you die with a spouse and children, then your children inherit either half or two-thirds of your wholly-owned property, and your spouse inherits a half or one-third of your wholly-owned property and all community/jointly-owned property.

Even with a will, a modest estate and no litigation, the probate process can take months. In cases of more complicated financial matters, it can take over a year. Over the course of this time, you will want to employ a probate lawyer to accurately follow the process, as well as advise you on what to do to maintain as much of the estate intact as possible. Filing fees for all the paperwork regarding the probate will also fall on your shoulders, further detracting from the estate.

There are limits to how much it will cost, thankfully. In California, the attorneys and executors may only take a maximum of 4 percent from the first $100,000 of the gross estate, followed by:

      • 3 percent off the second $100,000.
      • 2 percent off the next $800,000.
      • 1 percent off any additional value.

This only accounts for the lawyer and executor’s costs, and does not account for:

      • Appraisal Fees.
      • Bond Fees.
      • Accountant Fees.
      • Court Filing Fees.
      • Federal & State Death Tax.

For much smaller estates, probate may not even be an issue. Most states allow estates under a certain value ($150,000 in California) to undergo an expedited process, greatly reducing both the costs and time spent in court. Anything above that value, however, is subject to certain losses – and possible litigation.

How Your Will Could Be Contested

A will can be contested for many reasons, including:

  • The validity of the will’s content regarding the deceased’s true wishes.
  • Wording/construction errors in the will.
  • The mental state of the deceased while writing the will.
  • A poorly-appointed executor.

Factors that increase the likelihood of probate litigation include complicated relationships, broken families/dysfunctional families, multiple marriages, and sibling rivalry.

It is important to understand that in most larger families with a substantial estate on the line, tensions can run very high and complications or misunderstandings can lead to decades worth of resentment and anger. It is important to be clear to the last detail on every aspect of your estate before you die – if you leave even a single factor out, that factor can become the reason for strife in your family for generations to come.

Protecting Your Will From Litigation

An effective way to protect against these factors is to ensure that all marriages being with a pre-nuptial agreement, and that you get a good lawyer to ensure the validity of your will, the legitimacy of the evidence you must support your will, and the integrity of your executor.

An ironclad will requires experience, and a solid understanding of the law. DIY wills let you run the risk of omitting important aspects of estate planning, and you may overlook a detail that could cost your children their rightful inheritance.

Avoiding Probate With a Living Trust

Probate can be frustrating, but it is not inevitable. A revocable living trust is the preferred way to deal with your estate planning needs – allowing you to plan for the future at a leisurely pace while comprehensively fulfilling all your wishes, and making the hassle of probate entirely avoidable. A living trust is very different from a will – unlike a will (which goes into effect upon your death), a living trust document goes into effect immediately, and effectively creates an entity into which you can fund nearly everything you own (including your half of a jointly-owned property).

A living trust acts as an estate planning tool through the inclusion of beneficiaries, who will inherit everything you fund into the trust as per your specific instructions, upon either your death, or your permanent mental and physical disability.

However, be aware that a living trust can also be contested. If your trust’s grantor (you) is under undue influence or for some reason may be considered mentally incompetent to make financial decisions, then it is possible to contest the trust. Mental illness, duress/pressure or any other legal grounds to explain that a trust goes against what may most likely have been the grantor’s real wishes are all ways in which someone could contest your trust.

If you decide to construct a trust on your own, you run the risk of overseeing errors, such as creating a living trust document that does not satisfy all the state of California’s minimum requirements for a trust. In that event, someone could contest your trust on the grounds of documentary defect.

However, if you have the witnesses and evidence to prove your mental faculties and true will, and have an experienced probate lawyer on your side, then nothing should be able to contest your trust, and you will easily avoid the costs and troubles of probate and probate litigation.

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