Probate litigation is the process by which the probate court determines the validity of a will, evaluates the assets of an estate, determines liabilities, determines the heirs or beneficiaries and distributes property, should there be assets. Read for further information about what this process entails.

The Actions of Probate Litigation

When you die, and you leave behind a last will and testament the process of reading the will and closing the estate – assets plus liabilities – is handled under probate litigation.

During the process, the court will:

1. Identify any assets of the estate – money, insurance, property, cars, valuables, etc.
2. Determine if and what taxes are due
3. Divide what is owed by what is available and distribute taxes and debt payments.
4. Distribute assets to legal heirs as outlined in the will – but only if those assets are available after all debts are paid.

Probate Litigations and Challenges to the Will

If the probate process is not clean, and questions arise over what is owed, who gets what, and the assets of the estate, then under probate law, the court will settle those disputes. Here are some examples of what can go wrong when the will is read.

• There is a dispute over whether the will is valid or not. For example, if the person’s last will was made during a time when they were not mentally qualified to make a will and testaments – they were not of sound mind – then the will may be invalid, and a prior will, if any, would hold power over the invalid will.
• Poorly worded wills often are contested based on the ambiguity of wording in the will.
• Contests between heirs over who gets what, especially if there is no mention of a particular asset in the will or when there is a verbal contract or not.

How to Deal with Wills and Trusts Before Probate is Needed

Generally, a trust does not require probate. Wills and last testaments do require probate under California law. The best way to deal with probate litigation is to set up your will or trust so that any probate action is clean. That means:

• Using an experienced estate planning lawyer to draw up the document and when needed to help oversee the estate.
• Making sure that the will is a mirror image of the estate – that nothing is left out of the will or left up to interpretation. When the will is read, there are no questions about property disbursement.
• Addressing taxation in the will – you can do that by reviewing current legal requirements for property and assets and then deciding if a will is the best method of disbursing your assets. Sometimes using a trust has tax advantages.

Contact Charles D. Stark For Help With Wills, Trusts, & Probate Litigation

Find out more about the many options available to you in planning your estate. You can avoid many of the costly obstacles that probate litigation can cause by ensuring that your will or trust is set up properly. Charles Stark is an estate planning lawyer serving the greater Sonoma County community with more than 40 years of estate planning experience. Learn more about your options by giving our firm a call.