What Are Some High-Risk Factors For Probate Litigation To Occur?

Lack of proper pre-planning is the biggest risk factor I’ve encountered in my practice. This coupled with vulnerability, especially in later life, can be devastating to the victimized elder and their family. I’ve seen Ivy-league, brilliant people be taken advantage of in their later years due to poor planning. Trust planning with proper funding is the most effective way to protect yourself from predators when you no longer are able to handle your affairs. Unmarried long-term partners also can face unwanted outcomes when there is a lack of proper planning due to intestate laws in many states.

Who Is Able To Contest A Will Or An Estate?

This is a matter of state law, but generally, anyone who is an “interested person” or “heir at law” or creditor of an estate may contest. Many documents include “No Contest” (Latin call “In Terrorum”) provisions to try and dissuade such contests. Using a trust to avoid probate is often more effective than having to open a probate estate due to the requirements of notice in the latter but not in the former. This is another potential benefit of a trust but does not mean that a trust cannot be contested. It can, however, contesting a trust requires knowledge of the trust in the first place. Since trusts are not public for the most part, their terms are not open to the public or easily accessible. Contesting a trust generally requires more effort from the contesting party which in and of itself acts as deterrent.

Can A Decision Made By A Probate Court Judge Ever Be Appealed?

It can be; however, it will not be overturned unless the upper court finds that the judge made a substantial error or otherwise abused his/her discretion. Even in cases where there has been an error of law but the reviewing court finds that it was “harmless error”, the decision of a judge will be upheld. A probate court trial judge is given broad discretion in the matters over which the court has jurisdiction. Often the judge assesses the “credibility” of witnesses to determine a decision, which of course can be entirely subjective. Leaving a decision up to a judge can be risky.

Do I Need An Attorney For Probate Or Trust Litigation?

It is highly recommended.

How Can I Avoid Probate Litigation?

As stated above, the best way is to spend the time and money to set up a plan with the assistance of a competent estate planner. No contest provisions can also be useful.

For more information on High-Risk Factors For Probate Litigation, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (617) 924-0300 today.