On occasion, disputes between the executor and the beneficiaries, or even between the beneficiaries themselves can be triggered.
Following the death of a spouse, parent these disagreements can be confusing and painful. At Keehn Estate and Elder Law, we provide guidance and thoughtful representation to clients, whether beneficiary or executor, who are faced with the challenges of probate litigation.
When is probate litigation necessary?
Whenever interested parties (all those listed under the will and/or all the decedents family members, even if they are not named in the will) contest a will, or when there is a fiduciary failure or question as to the validity of the will, there is a reason for probate litigation. More specifically, common reasons for probate litigation include:
- Contesting a will: Capacity is a legitimate reason for contesting a will. If the testator or grantor (the person who created the will) was under 18 or suffers from substance abuse, dementia or other mental illness, they are said to lack capacity, making the will invalid. Other reasons may be that there are multiple wills or that the will was not signed by the testator and two witnesses.
- Undue influence: This is coercing or persuading a person who is susceptible to being influenced by deceit, flattery or insinuations. A susceptible person is one who has a physical or mental disability or psychological condition that makes it possible to sway their decisions in favor to the person exerting undue influence.
- Executor misconduct or malfeasance: If an executor is misappropriating or stealing estate assets, failing to pay legitimate estate debts or taxes or is self-dealing, that executor has breached his or her fiduciary duty.
Under California Probate Code 1020 and 1021, a petition for probate litigation must be filed with and verified by the court.
California probate litigation services we provide
Our goal is to get you favorable resolution for your probate litigation case. We offer guidance and representation in all areas of probate litigation, including:
- Lis pendens: This means that there is a notice of pendency of action, or that a lawsuit is being filed.
- Heggstad petitions: In California, this allows for the transfer of assets directly into a trust, thereby bypassing the probate process. It is intended to be used in cases where a decedent either forgot to transfer assets or passed away before the process was completed.
- A motion to expunge a lis pendens can be made under several circumstances, including “if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim.”
Learn more about how our attorneys can help you