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Probate Litigation: What It Is and How to Avoid It

It is an unfortunate fact that sometimes legal disputes arise surrounding property and persons affected by illness, aging and death. Probate courts deal with these sorts of problems, which can range from relatives of a deceased person disputing the will to family members determining who has power of attorney when a loved one becomes incapacitated. Sometimes families seek out a probate attorney to help them protect the property of an elderly person suffering from a degenerative disease, or to recover money that was taken through financial exploitation. Whatever the reason for bringing a case before a probate court, litigation of these cases shares some common features. Here is some useful background information about common probate disputes.

Probate Litigation Cases

Most matters handled by probate courts are not contested. Examples include assigning estate executors and identifying assets and distributing them among heirs. When disputes arise, however, they are filed in probate court and categorized as probate litigation. Common problems that result in litigation include: trust modification, challenges to a will’s validity, contests over guardianship and patient advocate status. Multiple marriages without pre-nuptial agreements, contentious parent-child relationships and sibling rivalries are all factors that increase the likelihood of probate litigation.

Once a case is brought before the court, it could be weeks or even months before it is resolved. In fact, the losing party will often seek an appeal, leading to another protracted court battle.

Exploitation of Assets

Cases that do not relate to the health and wellbeing of family members or the distribution of property following a death often revolve around the exploitation of assets. This can happen through a variety of means, and often elderly people are targeted by unscrupulous lenders or high-pressure salespeople pushing risky annuities, reverse mortgages and other questionable investments. It often not easy to ascertain whether financial abuse has occurred, but if a person has lost the ability to make sound financial decisions, it is best to intervene sooner rather than later to prevent them from being exploited.

In cases where family members feel exploitation has occurred, it can be difficult to provide proof in court if the person was still managing their own finances at the time. Criminal charges may be brought against a person who exploits a vulnerable older adult, but these cases are notoriously hard to prosecute. For this reason it is prudent to set up legal guardianship in cases of diminished mental faculties as soon as possible.

Avoiding Litigation

In order to avoid probate litigation it is necessary to be as clear and unambiguous as possible when creating wills, trusts and other legal documents. Seek out an experienced estate planning attorney for help throughout this process. It is especially useful to establish legal guardianship and power of attorney for loved ones who have become incapacitated as early as possible to protect their health and assets.

For more advice about how to avoid probate litigation, contact the offices of Queens Probate lawyer Richard Cary Spivack, and make sure your family members have the legal protection they need.

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