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What Is Probate Litigation?

April 12, 2012 | Comments: 0 | Views: 143


Probate is defined as the legal process of how the debts are paid and assets and property distributed of an individual who has passed away. Often times, the process involves a will and sometimes there is not one available. When a deceased individual's Last Will and Testament is offered for probate, there are many requirements and all heirs and creditors have rights, privileges, and limitations that must be strictly followed. The probate court identifies the assets of the deceased, assesses the taxes and other expenses, and distributes the funds and property to legal heirs listed in the will. A lot of probate matters are resolved without legal action, but when complications or requests for contest arise and the matter is discussed in court, it is called probate litigation. If a deceased individual has a large estate, various movable and immovable properties, and sizeable bank accounts, then their assets are more likely to be involved in probate litigation.

What is Probate Litigation?

Probate litigation involves the laws, codes, and statues that preside over wills, trusts, and the settling of a deceased individual's estate. It often includes disputes among relatives and challenging certain sections, provisions, or the entire Last Will and Testament. The Last Will and Testament can be disputed due to several reasons. The facts of individual disputes define the type of action that needs to be defended or prosecuted. The law of limitation is firmly relevant to probate litigation and even if there is a valid claim, a case will not be preceded by the probate court if the time limit has passed.


• Undue Influence: claim that disputes whether the person creating the will did so in a free manner without being persuaded by an individual who was in a position of control and trust.

• Mistake in Execution: the execution requirement for a will to be valid in the state it was created does not meet all of the provisions and is therefore invalid.

• Lake of Mental Capacity: claim declared based on the belief that at the time the will was created, the individual composing the will did not have the essential mental ability to completely understand the amount and nature of the assets and property, the beneficiaries who would normally receive the property, and how the property is distributed by the terms of the will. Lack of capacity can be due to the natural aging process, diagnosed medical condition, or influence of medications. Lack of mental capacity claims are based on medical records and behavior o the individual prior to executing the will.

Other Activities

Probate litigation can also involve various other activities besides contesting wills including:

• Will Construction: in the case of a vague will where the document does not completely dispose the entire estate or beneficiaries have passed away, the court assists in how the deceased estate and property should be distributed.

• Heir Determination: when an individual does not have a will or has little contact with his or her family, the court determines the heirs.

• Accounting: beneficiaries have the right to an accounting of the assets and property and court assistance may be requested to receive an account of the assets of the estate. Beneficiaries may also object to the accounting if it is unacceptable for any reason.


A probate litigation attorney can help make sure the wishes of a deceased individual are legal and binding to avoid interference with those wishes. They are experts in probate laws and help individuals take the right steps to ensure wills and trusts are completely legal. They help individuals leave assets to people other than legal next of kins. Additionally, a probate litigation lawyer can look out for an individual's best interested in the effect of the assets and property to be moved to the beneficiary by making sure the legal process is followed.

For details and common questions about the administration of probate in Nashville, see these Circuit Court Clerk's website providing instructions for Personal Representatives and Fiduciaries.

Source: EzineArticles
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