5 Challenges with Probate Litigation

5 Challenges with Probate Litigation

In a perfect world, a well-crafted will would be enough to ensure assets are distributed smoothly and fairly after a decedent’s death.

Unfortunately, even the most thoughtfully constructed wills can end up causing conflict and confusion among surviving loved ones and family members. If disputes cannot be resolved outside of court, the need for probate litigation may arise. During the process of probate litigation, survivors may contest a will on a variety of grounds. Common reasons to contest a will include allegations of fraud, undue influence, elder abuse, and breach of confidence by a lawyer or fiduciary.

Unsurprisingly, probate litigation can be one of the most challenging types of cases to resolve. This type of litigation is often fraught with grief and other strong emotions because it arises so close to the death of a loved one. Common challenges with probate litigation include:

The grieving process is still in effect. Grief can have a huge impact on an individual’s actions and ability to reason. It can be difficult to resolve disputes and confusion when parties who are involved are still going through grief and other strong emotions. Everyone experiences the stages of grief in different levels of intensity and works through each step in a different length of time, and it’s often not possible to hold off on probate litigation until everyone has taken the time they need.  Without proper mediation, grief can be a big obstacle to resolving probate disputes.

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Left-out individuals may feel hurt. Too often, survivors will associate how much a decedent loved them with how much the decedent left them, particularly when compared to other heirs. If one survivor was excluded or given less than others in the will, he or she may try to blame other beneficiaries out of frustration. During the process of probate mediation, it is often necessary to allow these types of feelings to be addressed and resolved before any settlement can be reached.

Underlying disputes have a chance to surface. One of the biggest challenges of probate litigation is it can serve as a platform for underlying disputes to surface. Unlike many other legal disputes, probate disputes involve parties that have often known each other since birth. Suppressed emotions may be unleashed and old grievances may reawaken. Often, these issues may need to be uncovered before any progress can be made towards a settlement. Without proper mediation, family members may be unable to move past emotional hurtles to focus on resolving financial and legal concerns.

Status imbalances. In some cases, there may differences in age, negotiation skills, and financial understanding among beneficiaries. Without guidance from a mediator, some beneficiaries’ voices may not be heard, while others may dominate the negotiation.

Tax issues. Probate often involves tax issues involving income and estate taxes. Through mediation, parties may be able to reach a settlement that reduces some of these taxes and uses the additional money to bridge the financial imbalances between litigation participants.

Resolving Probate Disputes with Effective Mediation

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In many probate litigation cases, effective probate mediation is necessary to reach a fair and acceptable settlement. Mediation is a confidential process where a professional mediator, such as an estate planning attorney, acts as a neutral party to facilitate discussion and help beneficiaries come to a resolution.

Only the survivors and beneficiaries involved in the probate litigation case can make decisions, but a skilled mediator may be able to help parties understand their priorities and needs and communicate constructively. In some cases, effective mediation can resolve probate disputes without the need to take the case to trial. In doing so, survivors can avoid the huge financial cost of formal ligation and keep disputes confidential and out of the public eye.

A talented and experienced mediator can help guide family members and beneficiaries to reach a fair resolution that benefits everyone. He or she will be able to tackle complications such as grief, wounded emotions, underlying disputes, and tax issues to keep the peace and preserve the interests of those involved.

If you and your family are in conflict over a will or trust, talk to an experienced probate litigation attorney. A good estate planning lawyer will have extensive knowledge in wills and trusts, and be familiar with Florida probate laws and how to overcome common probate complications.

Your attorney may be able to act as a mediator to help you resolve your issues and reach a beneficial solution outside of court. However, if it does become necessary to pursue a court action, your lawyer can guide you through the complex and often highly emotional process of formal probate litigation, while working to ensure a just and equitable settlement for everyone.

About the Author:

Christopher Q. Wintter is the founder of Wintter & Associates, P.A. and a board-certified expert in Trust and Estate matters by the Florida Bar. With more than 24 years’ experience as a practicing attorney, he also serves as an instructor and faculty member for the National Institute of Trial Advocacy (NITA)—the nation’s leading provider of legal advocacy skills training to practicing attorneys—and has earned the AV® Preeminent™ rating with LexisNexis Martindale Hubbell. He was also selected for inclusion in Florida Super Lawyers for 2011 and 2012 in Estate and Trust Litigation.