Probate is the legal process typically required after an individual’s death to settle and distribute the decedent’s estate. The probate process can be costly and complicated even without disputes; however, when a dispute turns into litigation, it can wreak havoc with the administration of the estate. The Indianapolis estate planning attorneys at Frank & Kraft explain how an estate might end up in litigation.
Probate Basics
After the death of an individual, his/her assets must be identified, located, valued, and eventually distributed to the intended beneficiaries and/or legal heirs of the estate. The legal process that oversees all of that is referred to as “probate.” Creditors of the estate are also notified and provided an opportunity to file claims during the probate process. If the decedent left behind a valid Last Will and Testament, the individual named as the Executor in that Will is responsible for overseeing the probate process and the terms of the Will are used to determine how the estate assets are distributed. If the decedent died intestate (without a Will), someone typically volunteers to be the Personal Representative and oversee the probate of the estate and the state intestate succession laws dictate how estate assets are distributed. If the decedent left behind a trust, assets held in the trust are not required to go through the probate process. Instead, the Trustee of the trust can distribute those assets to the named beneficiaries at any time according to the terms of the trust immediately after the Settlor’s death of the trust terms allow.
Why Might an Estate End Up in Litigation?
As you may well imagine, disputes can occur during the probate of an estate. In fact, the frequency with which probate litigation occurs has been increasing in recent years. Some of the more common causes of probate litigation include:
- Contesting a Will. To contest a Will you must allege, and eventually prove, that the Will is legally invalid for one of several allowable grounds in the State of Illinois. When a Will contest is initiated, the entire probate process effectively grinds to a halt to focus on the challenge to the Will. Until that issue is decided the other probate cannot move forward because the outcome of the Will contest determines how the estate is probate, using the terms of the Will or using the Illinois intestate succession laws.
- Contesting a Trust. A trust can be contested in much the same way, and for most of the same reasons as a Will. Unlike assets distributed via a Will, assets distributed via the terms in a trust are not subject to going through the probate process. Consequently, the probate of an estate may not be directly impacted when a trust is challenged; however, the distribution of the assets held in the trust may certainly be affected.
If you are an Executor, Personal Representative, or Trustee you have a fiduciary duty to defend the Will, trust, and/or estate throughout any litigation that may arise. To ensure that you do not make a costly mistake, retaining the services of an experienced probate litigation attorney is highly recommended. If you are a beneficiary or heir, you have a right to challenge the Will, the trust agreement, and/or the way an Executor, Personal Representative, or Trustee is fulfilling his/her duties and responsibilities. To increase your chances of succeeding, you will also need the assistance of an experienced attorney.
Contact Indianapolis Estate Planning Attorneys
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns regarding estate litigation, contact the experienced Indianapolis estate planning attorneys at Frank & Kraft by calling (317) 684-1100 to schedule an appointment.
Mr. Kraft assists clients primarily in the areas of estate planning and administration, Medicaid planning, federal and state taxation, real estate and corporate law, bringing the added perspective of an accounting background to his work.
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