You may be dealing with a probate dispute.
They’re complicated, emotional and can cost a lot of money. Recent data shows that the average probate process takes 20 months. And the average American greatly underestimates probate timelines as well as the cost of probate.
There’s the issue.
Arguments between family members over estates can quickly become nasty and contentious. Whether the case is a will contest, an executor dispute, or trust disagreement, probate litigation can tear families apart and take a toll on the estate itself.
But knowing what to expect can help you prepare for what’s to come.
In this guide:
- Probate Litigation Basics
- Probate Litigation Timeline
- Common Causes for Probate Disputes
- Preparing for Probate Litigation
Probate Litigation Timeline: What To Actually Expect
Probate litigation is just what it sounds like: litigation (lawsuit) in probate court.
Someone files a lawsuit in probate court to contest the will, object to the person appointed as the executor, or make a claim against the estate.
Probate litigation is much more common than people think. Recent studies found that three-quarters of Americans will experience a will, inheritance or probate dispute in their lifetime.
You are not alone. But one thing that can make a difference in these situations is to work with a qualified probate litigation attorney. The right legal counsel can help you protect your rights during these contested estate proceedings. Your attorney will also help navigate the often complex court process while also reducing the stress and financial cost on all involved parties.
The probate litigation process can be complex. And the timeline can feel like it’s taking forever.
When most people think about a probate litigation timeline, they imagine it to be over in just a few months. But that’s a common misconception. Even uncontested probate processes can take several months. But once litigation gets involved, the timeline can stretch even longer.
Here’s what the probate litigation timeline looks like.
- Initial Filing Stage
- Discovery Stage
- Mediation and Trial
- Appeals
1. Initial Filing Stage
This is where the litigation process starts, with someone filing a petition or claim in probate court. This could be a will contest, a petition to remove an executor, or another type of claim.
The court then schedules preliminary hearings and other deadlines for response. Just this initial stage can take several weeks.
2. Discovery Stage
Discovery is where things start to get more in-depth.
Both parties will gather and exchange information, including documents and depositions. During this stage, your attorney can request medical records, financial statements, and other evidence to support your case.
Discovery can last for several months, depending on the case’s complexity. The more significant assets are involved, the longer this stage tends to take.
3. Mediation and Trial
Most courts require mediation before a probate litigation trial can take place. This involves the parties meeting with a neutral third party to try to work out a settlement agreement. In fact, most probate disputes actually end up being settled during the mediation stage, which helps reduce the time and costs for all involved.
However, sometimes mediation doesn’t work, and you’re looking at a trial.
Probate trials can last from a few days to several weeks, depending on the case’s complexity. During the trial, both parties present evidence, call witnesses, and make their arguments to the judge. In most probate cases, it’s the judge who will make the final ruling, not a jury.
4. Appeals
Even if the case goes to trial and a decision is made, it might not be over yet.
Either party can choose to appeal the judge’s decision if they believe there was a legal error made. The appeals process can add months (or even years) onto the case timeline. This is why many attorneys recommend waiting to see if a settlement can be reached before going to trial.
Common Probate Dispute Triggers
The triggers for probate litigation vary, but knowing the most common reasons can give you an idea of where your particular situation fits in.
Here are the more common probate litigation causes based on recent dispute statistics.
- Executor disputes make up the largest share of probate disputes, comprising 31.2% of all cases.
- Will contests are another common reason for probate litigation. These involve challenges to the validity of a will based on factors like the testator’s mental capacity, undue influence, or lack of proper execution.
- Trust and beneficiary disputes constitute about 25.6% of probate litigation cases. These can arise when beneficiaries disagree with the trustee’s administration of a trust or challenge its terms.
- Family members intentionally left out of a will can also bring challenges against the estate. A lack of estate planning among American adults, according to estate planning statistics, is behind 35% of family disputes.
Probate Litigation Preparation
Preparation is everything in probate litigation.
- Document Gathering
- Cost Awareness
- Emotion Management
- Diligent Record Keeping
Gather Your Documents
The first step to take is to gather up any and all documents relevant to the estate in question.
This includes the deceased’s will or trust documents, financial statements and bank accounts, property deeds and titles, any communications you’ve had with the executor or estate, and any medical records if the testator’s capacity is in dispute.
This documentation will be critical as your probate litigation attorney starts building your case.
Be Aware of the Costs
Probate litigation can be expensive.
There are legal fees, court costs, and possible expert witness fees. Most probate litigation attorneys bill hourly, so costs can increase as the case drags on.
Some cases are settled quickly and for much lower costs. But other probate litigation cases go all the way to trial, which can drain the estate of its assets.
Manage Your Emotions
It’s interesting to note that most people don’t realize that probate litigation is one of the most significant sources of family discord and estrangement.
Old grudges are remembered and renewed. Siblings who haven’t spoken for years suddenly find new ways to not talk to each other. Familial relationships can be destroyed forever.
Try to focus on the legal and financial aspects of the dispute. Allow your attorney to do the heavy lifting for you.
Document, Document, Document
From now on, keep a written record of all communications and transactions related to the estate.
Save all emails, texts, and letters. Keep a log of phone calls and take detailed notes during and after conversations.
This documentation could be very important if the case ends up going to trial.
Working With Your Probate Attorney
Your probate litigation attorney is your main point of contact with the legal system.
Choose someone who has a lot of specific experience in probate litigation. Probate litigation cases require specialized knowledge of estate law, court procedures, and trial tactics.
Your attorney should be able to explain the process to you in simple terms, without resorting to legalese. They should also be able to set reasonable expectations for you from the beginning. And, good attorneys will communicate frequently to keep you informed about the case status and developments.
They should also attempt to work out settlements with the other side, before rushing to trial. Don’t be afraid to ask questions of your probate litigation attorney. This is your case, and you deserve to know exactly what’s going on at each step in the process.
Remember This
Probate litigation is never easy. It can be a long, drawn out process that tests your patience and your finances.
The probate litigation timeline is much longer than most people expect it to be. The better prepared you are with evidence and documentation, the smoother the process can go. And working with an experienced attorney can make a world of difference in case outcomes.
Take it one day at a time, work with your legal team, and do your best to come to a fair resolution.
