Probate Litigation Is Often Avoidable

August 28, 2015 | By Samantha B. | Filed in: Probate.


Probate litigation in New Jersey is regulated by current laws and takes place in specialized courts of law. It provides interested parties a means to challenge the provisions of a deceased person’s will and/or any codicils. Contested provisions can include the distribution of a decedent’s assets, both named and unnamed heirs, and question the appointment of individuals or firms as executors, trustees, and guardians.

Because probate litigation can be a very expensive process, individuals should consult an attorney and take all the steps possible to avoid creating situations likely to lead to settlement of the estate in court.

Common causes of probate litigation include:

  • Heirs consider division of assets as inequitable.
  • Heirs believe the will is invalid for various reasons including being written under undue influence or while suffering mental incompetence, does not represent the decedent’s wishes, or incompetence of legal representation.
  • Heirs may challenge the appointment of certain individuals or all individuals named as executor, trustees, guardians, or personal representative of the estate.
  • The will was not updated to reflect changes in the decedent’s life such as marriages, divorces, the birth of new family members, or death of named beneficiaries
  • The decedent dying intestate (without leaving a last will and testament) can create serious problems, especially if the heirs do not have good relationships with each other.
  • Appointment of a personal representative disliked by the heirs at law.

Avoiding Probate Litigation

Probate litigation in New Jersey and other parts of the country can often be avoided by taking some essential steps. These steps are not complicated, but if taken in time can ensure the decedent’s wishes are followed and protect beneficiaries at the same time. Steps that be taken include:

  • Create a standard estate plan avoiding the most common causes that a will is contested. For example, do not treat one child differently than the other children. Do not leave a child or children out of the will without leaving a detailed explanation of the reason for doing so. If the reason might be an embarrassment, it can be kept private by explaining the action in a memorandum to be kept by the estate’s probate attorney. If a trust is created, avoid making it overly complicated and controlling.
  • Second marriages create complications that can be avoided by signing of a pre- or postnuptial agreement. Arrangements in this area are sometimes considered as a suggestion that there is a lack of trust of a spouse, but that is far from the truth. Nuptial agreements can help deflect any resentment between the current spouse and children of a previous marriage(s). This is accomplished by ensuring the agreement clearly identifies all assets in the marriage. Assign ownership to every marriage asset and define which are totally owned by each spouse, and which assets are owned together. Make certain to identify all assets that are to be divided by the surviving spouse, and children of the current and previous marriage(s). Being clear and specific means titles cannot be changed in violation of the provisions of a will. This part of your plan may be the most useful when it comes to avoiding conflict and a resort to the courts to settle any disputes.
  • Claims the will was written while the decedent was under the undue influence of another person or lacked the metal capacity to make sound decisions are common causes of will challenges. This argument can be invalidated by making certain the will is written while the person is well and in good physical and mental condition.
  • Arrange for good accounting and regularly sending statements of the estate’s financial condition to all concerned parties.
  • Update the will frequently, every five years or so, to make certain all life changes are reflected in the will.

For additional information on this topic visit:
http://www.nolo.com/legal-encyclopedia/probate-faq-29135.html

Note that the author of this article is not an attorney. Consult a qualified attorney before making any decision that could affect the financial and tax status of you and your family.


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