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Top 5 Causes of Probate Litigation


No one ever wants to need a probate litigation lawyer, but sometimes things don’t go as planned. When it comes to probate, the reasons things don’t go as planned are fairly predictable. Indeed, there are 5 top reasons for probate litigation.


Use of a “Non-Standard” Estate Plan

It’s not wrong to use a non-standard estate plan. It’s just, well, non-standard. So the usual processes and understood way of handling your estate is not going to work, and your estate executor and the courts have to work harder to understand your meaning. You can avoid this by having an experienced estate lawyer create a plan that expresses your desires in the standard format, using standard estate planning language. So that the people who need to relate to and understand the plan are best equipped to do so.


Multiple Marriages

It’s not so much the multiple marriages that are the problem, but the lack of clarity about how to handle that. Clear prenuptials and postnuptial agreements as well as specific wording around spouses and children is helpful, although some family members can still contest an estate plan that was clear and specific if they don’t feel that it was reasonable. Life insurance policies can also get confusing when there are multiple marriages and beneficiaries.


Fiduciary Failures

Your estate executor must be organized, be a clear communicator, and be able to resolve conflicts. If they happen to be disorganized, an unclear or confusing communicator, or have poor conflict resolution skills, they can create misunderstandings. They may even mismanage the process, resulting in probate litigation by frustrated, confused beneficiaries. The best way to avoid this is to make sure fiduciary duties go to someone who is up to the task.


Appeal Based on Interpretation of Trust Terms

Despite all efforts to be clear, beneficiaries may not all agree on what some terms mean. There can be confusion over “homes”, “property”, “art collection” or other terms in an estate plan. This is a conflict that you can avoid only by using great specificity, and forgoing the use of general terms. Unfortunately, making a list of everything in an estate is unwieldy, burdensome, and clumsy. The best way to reduce this risk is through careful wording. Use itemizing when items have great value and it seems necessary.


Poor Planning

Poor planning seems broad, but it can be surprising how many forms “poor planning “ can take. This can be forgetting to address a vacation property, not updating to include marriages and births in the family, having willed more assets than exist at the time of death, and more. The best way to avoid these things is to work with a professional. Update your estate plans whenever large changes happen, or on a schedule, with an estate lawyer.

Filed under Legal Services

The Impact of Probate on an Estate


If you’re wondering what the impact of probate on an estate is, it’s likely you know of an estate in probate now, or have been appointed an estate executor. Let’s define probate and talk about what it does and doesn’t do.


How Do We Define Probate?

Probate is the process that transfers legal rights to property from the estate to the beneficiaries. Any assets that don’t legally pass to beneficiaries automatically are subject to a court proceeding to take these assets out of the deceased person’s name and transfer them into the names of his rightful heirs and beneficiaries.

Examples of items that pass without probate are life insurance proceeds, bank accounts with payable-on-death designations, some retirement accounts, and some forms of real estate ownership pass directly to named beneficiaries by operation of law. This is because there’s already a legal framework to handle transfer of these things to named beneficiaries.

Items that require probate proceedings to transfer ownership to a living beneficiary are referred to as probate assets. This can include cars, personal belongs, antiques, art, or other other assets.

It’ important to note that opening probate is not automatic when filing a will with the courts. These are two separate actions, though often done together.


Creditors Are Affected by Probate

It’s unlikely that a person dies with zero unpaid bills. Opening probate shortens the amount of time a creditor has to file a claim against the estate. Without probate, creditors have one year to file for payment from the estate. Once there is an official executor or personal representative as part of the probate process, creditors have only four months to file a claim. After that any request for payment can be rejected.


Some Cases Don’t Require Probate

Probate is sometimes legally important, but not always. People frequently don’t bother to open probate when there’s nothing of value to transfer or when all items of value are in a trust, or a joint account. These types of accounts can often avoid probate.

Even when probate is not necessary, the filing of the will remains required by law.

Filed under Legal Services, Probate Tips