While many estates are settled smoothly and without contestation, others lead to contentious disputes among surviving family members.
The process of challenging a provision of a will, codicil, trust, or other estate planning document is known as probate litigation. Probate litigation includes contested matters and disagreements among survivors that require court action to resolve. Contested matters handled by probate litigation courts may include:
- Challenges to the validity of a will
- Disagreements regarding the language or structure of wills or trusts
- Trust modification, reformation, or termination suits
- Contests over whether a guardian should be appointed for an incapacitated individual
- Breach of fiduciary duty actions brought by beneficiaries against an executor, trustee, agent, or guardian
As experienced Florida estate planning attorneys, we’ve seen a wide array of contested matters end up in probate litigation courts. Below, we’ve explored four of the factors that commonly lead to probate litigation.
Unusual estate plans. Unusual, unclear, and overly complex estate plans often cause disputes among survivors and may lead to probate litigation. Common examples are estate plans that omit a child or treat one child different from the other siblings, leave substantial assets to an unexpected beneficiary, or feature overly controlling trusts. The best way to avoid creating an overly complex or unclear estate plan is to consult with an estate planning attorney who can advise you on features to include or avoid, and review your plan for items that have the potential to cause confusion or strife.
Second marriages. Probate litigation often arises between families of first and subsequent marriages, especially if there is no prenuptial or postnuptial agreement that defines ownership of assets. Similarly, if it is unclear how assets are divided between the surviving spouse and the children from the original marriage, conflict can arise. If you have a family that includes multiple marriages or a nontraditional structure, be sure to talk to an attorney to ensure your estate plan provides for and protects the people you care about.
An unsuitable agent. The person who you name as the executor of your estate, trustee of your trust, or agent under your Power of Attorney will have an enormous amount of responsibility. That’s why it’s important to appoint individuals that you know will be up to the task, and who are trustworthy, organized, and intelligent. Ideally, you’ll want someone with strong leadership skills, whom you can trust to communicate effectively with other beneficiaries and make sure your wishes are honored.
Poor estate plans. Creating a proper estate plan involves a variety of legal tools and requires an intimate understanding of Florida laws and estate planning strategies. When individuals who are inexperienced with estate planning attempt to draft their will and other estate planning documents, errors, omissions, and oversights are common.
Poorly drafted or incomplete estate plans are one of the most common factors that create the need for probate litigation. To ensure your estate plan is powerful and avoids probate litigation, it is highly advisable to work with a board-certified, experienced estate planning attorney. Your attorney can help you understand your different options and guide you through the creation of an estate plan that honors your wishes and provides for your loved ones.
By creating a thoughtful, clear, and well-structured estate plan, you can avoid the need for probate litigation and spare your surviving loved ones a lot of stress and confusion. But if it does become necessary to pursue a court action, your attorney can help guide your family through the complex and often highly stressful process of probate litigation, while working to ensure a fair and beneficial settlement for your loved ones.