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Estate Litigation

Probate litigation and will contest overview

Probate is the court process through which the state ensures that property not in trust goes to the right people. Any estate with real property not in trust will have to go through probate, while those with assets under $100,000 and no real property can file for an abbreviated process.

Please note that we do not do probate.

If there is a will, the court determines whether it should be admitted to probate and if so, appoints the personal representative designated in the will. Property is then distributed according to the terms of the will under the court's supervision. If there is no will, the property is distributed under the intestacy laws of the state.

Sometimes, however, there are serious questions about the making of the will or the validity of a certain will. Perhaps a later will was made but can't be found Perhaps the beneficiary of the will was named in circumstances that point to undue influence, or perhaps the will was made at a time when the person's mental condition had deteriorated. Or, a will has been properly admitted to probate but now the personal representative is not carrying out the testator's wishes or is doing things in a manner that damages the interests of the other beneficiaries. http://wills-probate.lawyers.com/wills-probate/Grounds-for-Will-Contests.html

In cases like this, where the former owner of the property is dead and cannot speak for the truth, the beneficiaries or rightful heirs may wish to contest the will or other probate matters. Will contests are difficult and expensive, and not to be entered into lightly.

Probate and Will Contest FAQs

  • Can a copy of a will be probated if there is no original?
    • A copy may be filed for probate; however, circumstances may or may not show that the copy is a valid substitute for the original, and the other heirs-at-law may contest the probate of a copy.
  • Can I challenge a will with a no contest clause?
    • If there is cause to believe that circumstances such as undue influence existed, yes, a will with such a clause can be contested without penalty.
  • What is undue influence?
    • When one person takes advantage of another through a position of power, the influence exerted by the first is called undue influence. Basically, the person taken advantage of has no real choice. For instance, if a caregiver who is an elderly person's sole means of survival takes advantage of that position to have a will made in his favor, that is undue influence that invalidates the will. Proving undue influence depends on the particular facts of the situation. This is not an easy matter to prove.
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