Probate Litigation

When a North Dakota or Minnesota resident dies, the assets they leave behind—their estate—may need to go through probate. Probate is the process of settling a deceased person’s estate. That involves gathering the decedent’s property, paying any legitimate debts of the estate, and distributing the remaining assets to heirs or beneficiaries. Typically, this process is uneventful. However, in some situations a dispute arises regarding a decedent’s estate. These disputes may need to be resolved by a lawsuit in the probate court. 

What is Probate Litigation? 

Simply put, probate litigation is a lawsuit regarding the administration of a matter in the probate court. As noted above, the great majority of probate matters do not involve litigation. However, probate administration can involve grief and other strong emotions, complicated family dynamics, and significant assets. It’s not surprising that that combination can lead to conflict between family members or other interested parties.

Situations in which probate litigation might arise include those in which: 

  • The will submitted for probate was not executed according to legal requirements 
  • The will submitted for probate was not the most recent will executed by the deceased
  • The deceased lacked legal capacity to make a will at the time the will was executed
  • The will submitted for probate was procured by undue influence or fraud 
  • There is a dispute regarding who should be appointed personal representative (also called executor or administrator) of the estate
  • The personal representative of the estate is not fulfilling their legal obligations, such as keeping interested parties informed of estate business
  • The personal representative of the estate is self-dealing or has conflicts of interest regarding the administration of the estate
  • The personal representative is not properly managing estate business, causing loss to the estate
  • The estate is divided unevenly between children
  • The will disinherits someone who expected to inherit, like the child of the decedent
  • The will leaves property to someone who would not ordinarily be expected to inherit
  • The deceased had children from a prior relationship and there is conflict between them and the surviving spouse 
  • There is a dispute over the validity of a creditor’s claim against the estate
  • The will contains unclear or conflicting language or directions
  • The  will contains provisions that seem grossly unfair 
  • A trust is worded incorrectly and needs the court to correct (reform) it
  • A trust that was established for a particular purpose is no longer capable of fulfilling that purpose and needs to be terminated
  • Trustees of a trust are acting incompetently or unethically and need to be replaced.

Probate litigation may be the only recourse of an heir, beneficiary, creditor, or other interested party who believes that injustice may be done without court intervention.  

When Do I Need a Probate Litigation Attorney?

If you are the personal representative of an estate or the trustee of a trust, and someone is suing you or the estate or trust, you must have an attorney. These matters can be complex, and if you are found to have committed wrongdoing, you could have personal liability. A probate litigation lawyer can not only effectively defend you, they may be able to help resolve the dispute more quickly. That reduces costs to the estate or trust and preserves assets for the people intended to have them. 

If you are seeking to file a lawsuit in the probate court, you can benefit from an attorney’s representation as well. A consultation with an attorney can help you to understand whether you have a valid claim and the likelihood of its success. An attorney can also inform you of any potential negative consequences of probate litigation. 

For instance, if you are challenging a will that has a no-contest clause, a probate litigation attorney will help you weigh the risks of filing a lawsuit, which could include losing an inheritance to which you would otherwise have been entitled. If you do decide to litigate your claim, an attorney will prepare any necessary paperwork and appear in court to argue and present evidence on your behalf.

Choosing a Probate Litigation Attorney

Probate courts may have particular rules that a general civil litigator may not be familiar with. If possible, work with an attorney who is not only experienced in probate administration, but in probate litigation. 

Beyond having courtroom experience and knowledge of probate law, consider other attributes you want your attorney to have. As mentioned above, emotions are often high in probate litigation matters. You may be grieving, overwhelmed, angry, or stressed, or all of these. You need an attorney who is responsive to your questions, explains things clearly, and has compassion for what you are going through. 

If you think you have a claim that needs to be resolved in probate court, or you want to learn more about probate litigation, please contact Fremstad Law to schedule a consultation.