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Losing a loved one is a tragic event, and it can be even more difficult when disputes arise among heirs and beneficiaries regarding the management and distribution of their estate. These disputes are typically resolved during the probate process, where the administration and distribution of the estate are addressed. In this guide, we will provide you with an overview of the probate process, introduce the key parties involved in these disputes, discuss the common matters that are subject to probate litigation, and explore how such litigation progresses and the disputes are resolved.

What is Probate?

Probate is a court-supervised legal process that is meant to ensure that the decedent's wishes are carried out and that their assets are properly distributed per the terms of their last will and testament. More specifically, the process involves:

  • Validating the will left by the decedent unless they died intestate (i.e., without leaving a will). 
  • The appointment of an executor or administrator (discussed further below). 
  • Notifying the beneficiaries. 
  • Identifying and securing the estate's property, investments, accounts, and belongings (a process referred to as “marshaling”), and having the assets valued and appraised. 
  • Paying off any outstanding debts and taxes owed by the estate. 
  • Distributing the remaining assets to the rightful heirs or beneficiaries.

The Key Players: Executors, Beneficiaries, Creditors, and Other Interested Parties

Probate litigation usually involves various parties with differing interests and roles in the decedent's estate, including:

  • Executors: An executor is a person or entity named in a will to oversee the estate’s administration. Executors have the legal authority to marshal the estate’s assets, pay its debts, and distribute the estate assets in accordance with the will's provisions.
  • Administrators: When someone dies intestate (meaning that they died without a will or the will is declared invalid), or if a named executor is unable or unwilling to serve in that capacity, the probate court will appoint an administrator to perform the functions that would otherwise be performed by an executor.
  • Beneficiaries: Beneficiaries are individuals or entities (such as charities and non-profit organizations), that are designated in a will to inherit and receive distributions from the probate estate’s assets.
  • Creditors: These are individuals, businesses, or other entities to whom the deceased owed debts at the time of their passing such as for outstanding loans, unpaid bills, medical expenses, etc. For these purposes, federal, state, and local tax authorities to which the deceased or the estate might owe taxes can also be viewed as creditors.

Common Subjects of Probate Disputes

Now that we have discussed the probate proceedings and identified the parties involved, we will move on to the types of disputes that frequently arise in probate litigation.

Will Contests. Will contests are processes by which one may challenge the validity of a decedent’s will. Common grounds for contesting a will include:

  • Lack of Testamentary Capacity: To execute a valid will, a testator (i.e., the person executing the will) must have had the mental capacity to understand the nature and extent of their assets, their relationships with potential heirs, and the consequences of their will. As such, a will may be challenged based on allegations that the testator suffered a mental illness, was cognitively impaired due to an age-related impairment, or was under the influence of alcohol, drugs, or other substances at the time the will was signed. 
  • Undue Influence: Undue influence occurs when a person in a position of trust improperly pressures or manipulates a testator (the person making the will). This can lead to a will that unfairly benefits the influencer, rather than reflecting the testator's true wishes. A will must be created freely, without undue influence from others.
  • Improper Execution: To be valid, a will must follow specific legal formalities, such as how it is signed and witnessed. If these formalities are not followed, the will may be invalidated by the probate court. 
  • Fraud or Forgery: A will can be challenged and potentially invalidated if it's proven to be forged (which is where a signature on the will is fake, or the entire document is a complete fabrication), or fraudulent (which is where the testator is deceived or tricked into signing the will).

Disputes Involving Fiduciaries. Executors and administrators bear a significant legal responsibility as fiduciaries of the estate. Breaching the duties of loyalty, prudence, impartiality, and record-keeping can lead to severe consequences, including fines and removal by the court. Common issues include:

  • Self-Dealing: Fiduciaries are strictly prohibited from using their position for personal gain. Examples include purchasing estate assets below market value or directing estate business to companies in which they have an interest. Such actions can result in personal liability for estate losses.
  • Mishandling of Assets: Fiduciaries must manage estate assets with the highest level of care. Reckless investments, neglect, or inaccurate valuations constitute breaches of this duty.
  • Conflicts of Interest: The interests of the estate must always take priority. Fiduciaries must avoid actions that create a conflict of interest or even the appearance of impropriety. Hiring unqualified friends, borrowing estate funds, or investing in personal ventures can lead to removal and penalties.
  • Improper Distribution of Assets: Executors and administrators must distribute assets in a timely manner according to the will or intestacy laws. 

Challenges to Executor or Administrator Appointments. Disputes that can lead to probate litigation often arise even before an executor or administrator assumes their duties. Some of the potential grounds for challenging an appointment include allegations of the individual's incapacity to fulfill the role due to mental or physical health issues, evidence of past misconduct or a history of financial irresponsibility suggesting they may not manage the estate's assets prudently, or potential conflicts of interest that could affect their impartiality in administering the estate.

Disputes Regarding Creditor Claims. As mentioned above, individuals or entities with outstanding debts owed by the deceased at their time of death are entitled to submit claims against the estate. The estate's executor, administrator, or beneficiaries can contest these claims, questioning the legitimacy of the debt or arguing that the claim is precluded by the applicable statute of limitations. 

Key Evidence for Proving (or Disproving) Probate Claims

Probate litigation relies on various types of evidence to support or refute claims made during the proceedings. The specific evidence needed depends on the nature of the dispute. Some common types of evidence include:

  • Records and Communications: Emails, phone records, medical records, and financial documents. These can reveal patterns of undue influence, shed light on the deceased's mental state, or expose potential financial mismanagement by the fiduciary.
  • Witness Testimony: Witnesses who knew the deceased or were present during key events can offer valuable insights and firsthand accounts of potential testamentary incapacity, undue influence, or other improper conduct.
  • Expert Analysis: Professionals such as handwriting experts, forensic accountants, or medical specialists may be called upon to analyze contested documents, trace financial transactions, or assess the deceased's mental capacity.
  • Legal Documents: The will or trust itself, prior testamentary documents, and any relevant contracts or agreements can provide crucial context and evidence in disputes.

Alternative Dispute Resolution (ADR)

Probate disputes can lead to lengthy and expensive court battles. Alternative dispute resolution (ADR) methods offer a potentially faster, more cost-effective, and less stressful way to resolve disagreements. In some jurisdictions, parties may even be required to explore ADR options before a probate court will hear their case. Common ADR methods include:

  • Negotiation: This is where the parties and their attorneys work directly to reach a mutually agreeable settlement.
  • Mediation: This is a process whereby a neutral third party (the mediator) helps guide discussions and facilitates a mutually beneficial agreement or settlement. 
  • Arbitration: In arbitration, an arbitrator hears the evidence and issues a binding decision to resolve the dispute.

Note that while mediation and arbitration are both forms of ADR, they generally differ in that mediation is a non-binding process aimed at reaching a voluntary agreement, whereas arbitration results in a binding decision made by the arbitrator.

Probate Court Litigation

If alternative dispute resolution methods don't lead to a settlement, the dispute will be submitted to the probate court for formal litigation (again, keeping in mind that ADR might occur, or be required, at some time after the dispute moves to probate court based on the particular jurisdiction’s laws governing probate proceedings). Probate court litigation is a much more complex and structured process overseen by a probate judge, and generally proceeds as follows: 

  • Filing a Petition: The process begins when a party files a petition with the probate court outlining the nature of the dispute, who is involved, and the remedies they seek.
  • Notice to Interested Parties: All potential stakeholders in the estate (beneficiaries, heirs, etc.) must be formally notified of the petition to ensure everyone has an opportunity to participate in the proceedings.
  • Discovery: Similar to other civil cases, probate litigation includes a discovery phase. This allows parties to gather evidence, such as documents, depositions, and answers to written questions (interrogatories), to support their claims.
  • Hearings: The probate court may hold hearings to address certain preliminary matters, such as resolving issues regarding the admissibility of evidence, or to issue emergency orders to preserve estate assets. 
  • Trial: At trial, both sides present their evidence and arguments before the probate judge (or a jury as well, depending on the jurisdiction and the nature of and grounds for the dispute), after which the judge issues a final ruling on the disputed issues.

Remedies and Relief in Probate Litigation

When a probate court makes a ruling in a dispute, it has the power to order various remedies designed to uphold the deceased's wishes, protect the estate, and ensure a fair resolution for all parties. Common remedies may include:

  • Modifying or Invalidating the Will: The court can invalidate a will entirely or alter specific provisions if they are found to be invalid due to factors such as fraud, undue influence, or the testator's lack of capacity.
  • Removing or Replacing an Executor/Administrator: If the court finds that a fiduciary breached their duties, caused harm to the estate, or is otherwise unsuitable, they can be removed and replaced.
  • Surcharging the Fiduciary: A fiduciary who acts negligently, mismanages funds, or prioritizes their own interests over the estate's, can be held financially accountable and ordered to reimburse the estate.
  • Reinterpreting Will Provisions: The court can clarify ambiguous or conflicting language in a will to ensure it accurately reflects the testator's true intentions.
  • Resolving Disputes over Assets: The court can determine the rightful ownership of specific assets and order their distribution accordingly, or potentially order the sale of assets to settle disputes fairly.


If a party disagrees with a probate court's ruling, they may be entitled to appeal the decision to an appellate court. Unlike the probate court, which examines evidence and makes initial decisions, the appellate court focuses on legal arguments, potentially upholding, modifying, or reversing the original ruling based on its review of the case. 

As you can see, probate litigation frequently involves complex legal issues and high stakes. Whether you are an executor facing a will contest, a beneficiary concerned about mismanagement of the estate, or an heir involved in a dispute, a seasoned probate litigation attorney can be your strongest advocate. Through AAL's directory, you can find skilled attorneys with the knowledge and experience to guide you through this challenging process and provide the strong legal representation you deserve.

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