Guidelines for understanding trust and estate litigation

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Tips for trust and estate litigation

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10 Guidelines for Understanding Trust and Estate Litigation Probate

Trust and estate litigation probate is a court-supervised process that settles a person’s debts on his demise and passes his estate to heirs and beneficiaries. Here’s a look at 10 guidelines for understanding and following trust and estate litigation probate.

1. What is trust and estate litigation probate?

Trust and estate litigation probate is the process of filing a case (civil) in Probate Court. The aim of a civil case filed in Probate Court is to challenge the creation of a trust, asset distribution, or fiduciary handling of the trust’s assets by the trustee.

2. Who is involved in trust and estate litigation probate?

Any interested party can file a case and take legal action against an estate’s administrator. Most often, these interested parties are the beneficiaries who are named in the will and heirs – next of kin who are not named in the will.

3. What are some common situations leading to trust litigation?

Fraud, disputes between trustees, and even ineffective or illegal management of a trust by its trustees can all lead to litigation. Beneficiaries can pursue claims against the wrongdoing on the part of the trustees, and trustees can file a case against each other.

4. What are the critical steps in trust and estate litigation probate?

Sometimes, even the most comprehensive estate plan is not enough to administer an estate after the death of a loved one, and disputes may arise. Litigation might be the only way forward when disputes and unresolvable issues arise. Here’s a look at how trust and estate litigation proceeds.

Step 1: Investigation and research

It would be best if you discussed your case with an estate litigation lawyer as soon as possible so they have the time to assemble a legal team who can investigate the facts surrounding your claim. Your lawyer or will attorney must have a complete understanding of the case so they can consider the applicable law to your case.

Step 2: Pleading

Once both parties have had their respective lawyers investigate the claims made, the pleading step begins. 

Here, both parties submit their pleadings (legal filings) to court. During a pleading, each party will have a chance to formally state their legal claims and defenses.

The actual lawsuit begins with the petitioner or plaintiff filing their complaint. The complaint will outline the claims that the plaintiff makes against the defendant. Each claim in the complaint is treated as a separate cause of action.

Step 3: The discovery

During the discovery stage, each party discloses its evidence to the opposite party. During this stage, both parties discover the strength and weaknesses of their opponent’s legal arguments and get a better idea of how successful their case will be.

The lawyers of both sides might choose to depose expert witnesses who can support their legal claims related to the case.

Step 4: Mediation

Going to trial can be expensive for both parties, so they are encouraged to resolve and settle their disputes during mediation. A third, unbiased party mediator heads mediation.

5. What are the common issues in probate?

Problems can arise during any stage of probate. Some of the more common ones are:

  • The person named executor of a will does not wish to act as the executor.
  • The value of the estate is disputed.
  • A family member or a friend disputes the validity of a will.
  • Allegations that an executor has not fulfilled their responsibilities.
  • Arguments between beneficiaries and heirs who are not in the will.

Last will and testament
Testament- my last wish 

6.  What are the essential documents you need for estate planning?

The following legal documents must be included in your estate plan:

7. What are some key strategies for resolving trust and estate litigation probate?

Estate disputes arise in the closest families, but there are steps you can take to prevent these conflicts.

Ensure proper estate planning that clearly outlines the division of property. The will must be witnessed and validated. If dividing property unequally between children, it would help to state the reasons to avoid disputes.

The family can use a mediator to solve any dispute arising after death.

Consider liquidating all the assets if the assets are not divided equally. For instance, if one child is given a large family home and another a smaller apartment, the assets can be liquidated, and the money is divided equally.

Choose a third-party fiduciary if a family member chosen as executor or trustee declines the role. That will help keep the entire probate process neutral.

Find ways to divide household items. For instance, you can get siblings and children to take turns choosing one household item they want.

8.  What are the key risk factors that lead to trust and estate litigation?

While every trust and estate lawsuit is different, some risks are more common than others, and you must keep a look out for these.

First - disputes in a blended family, where fights erupt between stepfathers and stepchildren or stepmothers and stepchildren. 

Next is alcoholism and substance abuse in one or more family members. These members can loot a trust or estate for several years before it comes to light. 

A third problem is a gambling addiction wherein a caretaker or family member can abuse a will or trust to get their hands on ready cash.

 Trust and estate litigation

9.  What are the disadvantages of trust and estate litigation probate?

Trust and estate litigation probate can be a long, drawn-out affair, with even the most simple and straightforward cases taking several months to resolve. 

Another disadvantage is that the probate process can be expensive (court fees, representative fees, accounting fees, bonds, etc.). Trust and estate litigation can also cause problems between family members.

10.  What are the potential tax implications of trust and estate litigation probate?

When a trust or will is challenged, there is a risk of new expenses arising in both accounting and legal fees, and the disposition of assets could also change. During proceedings, it might come to light that some assets don’t belong to the estate or that some charities or beneficiaries should not have received benefits.


So there you have it – 10 guidelines for understanding trust and estate litigation probate – what it is, what it involves, and its advantages and disadvantages. The better you understand these guidelines, the better you can decide whether to pursue litigation or settle via mediation.

Related: How to Find Legal Help When You Can’t Afford a Lawyer

Author: Frank Kramer is an experienced probate and estate planning lawyer working in Miami and helping clients across Florida. Frank has over 10 years of experience working in basic and complex cases to help protect families and properties. He often shares valuable information on trust and estate litigation probate online.

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