What is probate litigation? For many people, this question may rarely come to mind. However, there are some circumstances under which understanding probate litigation may prove crucial, such as in the event of contesting a will or if there is reason to think the executor or administrator of someone’s estate may not be doing what they are supposed to do. If you are considering probate litigation in the San Francisco area, consider contacting Von Rock Law at (866) 720-0195 to discuss your concerns and learn about all of your legal options.
Probate Terms to Know
Whether you have dealt with probate before or not, there are some terms unique to probate that are important to know and understand as you learn about probate litigation.
These terms are:
- Testator: The person who created a will.
- Executor: A person named in the will to be in charge of the probate estate.
- Administrator: A person appointed to oversee a probate estate that has no will.
- Beneficiary: A person who is entitled to receive property because they are named in the will.
- Heir: A person who expects to inherit from an estate that has no will.
What Is Probate Litigation?
Probate litigation is a specific type of lawsuit, handled not through the regular court system, but by the Superior Court of California County of San Francisco Probate Court itself. Probate litigation is a lawsuit filed by an heir or a beneficiary against an executor or administrator of an estate or a third party.
There are three main potential purposes behind probate litigation:
- To obtain the rightful inheritance of an heir or beneficiary;
- To ask the court to rule on the appropriateness of the executor or administrator’s acts; or
- To reclaim property that rightfully belongs to the probate estate.
Reasons for Considering Probate Litigation
One of the biggest questions after “what is probate litigation?” is often “why would I seek probate litigation?” Some people may wonder if they can do so simply because they are unhappy with what their loved one left them. Like any lawsuit, probate litigation requires that the person initiating the matter to have standing and a legal reason to file the lawsuit. Von Rock Law may be able to help you determine whether you have standing and a legal reason for a lawsuit.
Reasons an individual may pursue probate litigation include:
- To contest a particular person as administrator of an estate
- To ask the court to order that the executor or administrator perform a specific act
- To ask the court to order the executor or administrator to account
- To recover property that was wrongfully taken, sold, or otherwise removed from the estate
- To discontinue the executor or administrator’s powers
- To have the executor or administrator removed from the estate
- To seek damages against the executor or administrator
- To appoint a successor executor or administrator
Suing the Executor or Administrator for Breach of Fiduciary Duty
The most common type of probate litigation is suing the executor or administrator of an estate for breach of fiduciary duty. An executor is required to act in the best interest of the beneficiaries of the estate. They cannot do things that they know will hurt the value of the estate or any assets in the estate, nor can they try to give advantages to one beneficiary over others. They also cannot use the position to break the law, such as by stealing from the estate.
The most common breaches include:
- Failing to account
- Mismanaging or wrongly taking estate assets
- Not performing necessary tasks in a timely manner and thereby delaying the distribution of the assets to the heirs or beneficiaries
Contesting the Will
Another common type of probate litigation is contesting, or challenging, the will. People may sometimes contest a will if they believe that the will does not accurately represent the wishes of the testator. However, in some cases, unusual or unexpected terms have valid reasons behind them, so it is important to consider why the individual believes the will is not accurate.
For example, if an individual wishes to contest the will because they were not named as a beneficiary, but they had a long period of time in which they did not speak to the testator or had other issues with the family that created an estrangement, the testator may have intentionally left that individual out of their will. A significant history of irresponsibility may be another reason someone is not named or is given a different inheritance than expected.
Reasons for Contesting the Will
When challenging a will, an individual cannot just state that they think it is inaccurate. They must be able to provide a concise reason behind the alleged inaccuracy that explains why the testator would not have created the will as it stands.
The Superior Court of California offers some examples of reasons that may be used to contest a will, including:
- Lack of mental capacity: Being able to physically sign a will but mentally incapable of understanding it due to dementia, an inability to understand and remember the situation properly, or an inability to remember their relationship to others affected by the will.
- Undue influence: Excessive pressure or manipulation that overcomes the testator’s free will and causes the testator to write their will according to the influencer’s wishes.
- Fraud: The testator is deceived into making a will they would not have made without the deception.
- Duress: Unlawfully confining the testator or one of their relatives, unlawfully detaining the testator’s property, or confining the testator by fraud until they agree to create a will the detainer wants.
- Menace: The threat of duress.
- Failure to properly execute the will: If the will was not properly executed, it can be contested. This may include the will not being witnessed or that someone other than the testator signed the will.
- Later will: There is a more recently executed will than the one being used in probate.
- Forgery: The will has been falsified.
Is It Probate Litigation or Trust Litigation?
Many people use the terms will and trust interchangeably; however, a will and a trust are two different things. A will is a document identifying a person in charge of the probate estate and how to distribute that estate. A trust avoids probate, changes the title to assets to the trust, and distributes assets based on the terms of the trust.
Both probate litigation and trust litigation take place in probate court, but the two are separate. While the deceased may have both a probate estate and a trust estate, any individual intending to challenge one or the other should be sure that they are challenging the right one.
Are You Considering Probate Litigation?
Answering the question “what is probate litigation?” is not very complicated. Understanding whether you have a case for probate litigation can be more difficult. For example, you may believe that an executor is breaching their duty by not collecting an asset, but the executor may be working with police to collect that asset from a location that has large, aggressive dogs or is otherwise inaccessible. If you have concerns about a San Francisco will’s validity, an executor or administrator’s actions in their role, or other estate plan question, consider contacting the compassionate and experienced California estate planning attorneys at Von Rock Law at (866) 720-0195 to go over your case and discuss possible legal options.