What’s the Difference Between Probate and Estate Litigation?

Probate and Estate Litigation Concept.

If your loved one recently passed away, you might have many questions about the legal process that is associated with settling their estate. Critically, people often confuse the terms “probate,” and “estate litigation.” Although they both take place in court, probate and estate litigation involve very different processes and procedures.

While probate is the formal process of distributing a decedent’s property after they die, estate litigation is only necessary if there is a dispute over a will, trust, or some other aspect of estate administration. Significantly, whether the probate process goes smoothly — or estate litigation is required — the objective is to ensure each beneficiary obtains the share of the decedent’s assets to which they’re entitled.

What is Probate?

Probate refers to the legal process of settling a decedent’s estate after they pass away. The need for probate is not based upon whether your loved one had a will — rather, it depends upon whether the property the decedent left behind are probate or non-probate assets. For example, if the assets were titled in the decedent’s name alone, probate is usually necessary. If the assets were jointly held, a beneficiary was designated, or the asset was held in a trust, probate may be avoided.

During the probate process, the decedent’s personal representative has a number of responsibilities that must be carried out. There are also specific deadlines and filing requirements that must be followed regarding the personal representative’s tasks.

The personal representative’s duties include the following:

  • Determining the interested parties in the estate
  • Taking inventory of the decedent’s assets
  • Collecting and protecting the decedent’s assets
  • Paying estate taxes
  • Paying debts of the estate
  • Distributing the decedent’s assets

While the probate process is supervised by the court, it is not the same as estate litigation. In most cases, probate can be carried out without dispute. However, in some situations, conflicts can arise — disputes can stem from sibling rivalry, the construction of a will, financial matters, or the misconduct of a personal representative. In these cases, litigation may be needed.

When is Estate Litigation Needed?

Probate can be stressful, and the process can become even more overwhelming when family members believe they should have received more assets or another conflict arises. Specifically, estate litigation encompasses any type of dispute that involves the decedent’s property or how it is distributed. Any party with legal standing — meaning, anyone with a stake in the outcome — can pursue estate litigation to resolve a dispute in connection with the probate process.

Estate litigation commonly occurs in several situations. For instance, if a party is attempting to invalidate the decedent’s will because they believed their loved one lacked the testamentary capacity to make one or the document wasn’t properly executed, it may not be valid under the law. A will contest must be brought within one year following the decedent’s passing.

Another reason disputes can happen during the probate process is due to a personal representative’s improper conduct or breach of fiduciary duty. There are a variety of ways a personal representative can mismanage an estate, including failing to maintain the decedent’s property, missing filing deadlines or court appearances, and failing to communicate with the beneficiaries. In such cases, court intervention may be the only viable course of action — remedies can include removal of the personal representative as well as the imposition of other penalties.

Other situations that can lead to estate litigation may involve creditor claims, questions about the ownership of business assets, and heir disputes concerning omitted spouses or children. In addition, trusts may be contested if they contain vague terms or ambiguous language. Disputes concerning trusts may also arise in cases where a trustee has breached their fiduciary duty or if the grantor was subjected to undue influence when executing the trust instrument.

Should You Work with a Probate Attorney or an Estate Litigation Lawyer?

Not every probate matter results in estate litigation — but when disputes arise, it’s vital to have a knowledgeable attorney by your side who can protect your interests and guide you through the litigation process. If there is a risk your loved one’s will may be contested, or some other facet of estate administration might be challenged, it’s best to work with an attorney who handles both probate matters and estate litigation from the outset. In doing so, you will have counsel by your side who is already familiar with the facts of your case if there is an issue that requires litigation — and who also has the skills necessary to fight on your behalf in the courtroom.

Contact an Experienced Minnesota Estate Litigation Lawyer

Probate matters can be time consuming and complicated. However, a knowledgeable probate and estate litigation lawyer can help to take the burden off your shoulders. At Dave Burns Law Office, I provide capable counsel for Minnesota probate administration and adept advocacy for estate litigation. If you would like to discuss a probate or estate litigation matter, I welcome you to contact me at (612) 677-8351 or by emailing dave@daveburnslaw.com. I assist clients throughout the Twin Cities metro area and am available to meet with clients in both Minneapolis and St. Paul.

Categories: Litigation, Probate

The Dave Burns Law Office hopes you find this article helpful. But please do not rely on it as legal advice. The law changes regularly and the outcome of any legal matter depends on its unique circumstances. View full disclaimer