Questions & Answers With a Probate Litigator

Probate refers to the legal process of administering the estate of a deceased person. Probate litigators are attorneys specializing in legal disputes regarding probate matters. In this Q&A, our probate litigator, Matthew Stein, Esq. will answer important probate and estate planning questions.

What does a probate litigator do?

Probate litigation attorneys handle estates, trusts, and amendments gone wrong. For example, a decedent’s estate planning may have been inconsistent, leading to lawsuits when they pass away. These lawsuits are called petitions in the probate court, separate from the civil court. Probate litigators must have expertise in probate code to handle these types of lawsuits. In probate court, there is no jury. Instead, a judge hears the case; Orange County has five probate judges.

Why is it essential to have an estate planning attorney?

Estate planning attorneys are critical to the estate planning process. They develop relationships with their clients that online legal technology cannot do. For this reason, estate planning attorneys understand the family dynamics. In doing so, they can draft an estate plan that avoids litigation and controversies. When there is a solid estate plan, litigation ends quickly.

What is the importance of creating a power of attorney while a person is still healthy?

Power of attorney should be established when a loved one is healthy and of sound mind. Unfortunately, if a power of attorney does not exist and a loved one is diagnosed, conservatorship must be obtained. Obtaining a conservatorship is very expensive, and often, the process takes a considerable amount of time.

How do estate planning attorneys save their clients money?

Expert attorneys specializing in estate planning advise clients on how to reduce estate tax and capital gains tax. Hiring an estate planning attorney saves the estate a significant amount of money, which leaves more wealth for beneficiaries to inherit.

Why should one be transparent with children about estate planning?

Lack of transparency can confuse beneficiaries, often leading to litigation. Unfortunately, probate litigation costs the estate money, leaving less for heirs to inherit. Most attorneys recommend that parents bring their adult children to an estate planning meeting. In this meeting, they can vocalize their wishes, who their trustees are, and how they will divvy up assets. Transparency helps families avoid litigation.

Are there alternatives to disinheriting children to avoid lawsuits?

A family can avoid probate litigation if the owner of an estate leaves a small amount to the child or children they want to disinherit. For example, a person would like to disinherit their son and wants to give everything to their daughter. Instead of giving the son nothing and putting a potential lawsuit on the daughter’s hands, the person can leave the son just enough to make him question whether he wants to initiate a lawsuit. In most cases, trusts have no contest provisions. Therefore, he may get nothing if the son contests the trust and files a lawsuit. In most cases, the person receiving little realizes that little is better than nothing. The estate owner needs to explain in the estate documents why they wish to leave less to one child so there is no confusion if that child does decide to file a lawsuit.

How do litigation attorneys help estate planning attorneys?

Probate litigation attorneys let estate planning attorneys know the scenarios most commonly brought to probate court. Therefore, estate planning attorneys can draft even more concise documents for their clients to keep them out of probate court.

What is undue influence?

Undue influence is when someone exerts excessive pressure, manipulation, or coercion on another person to make decisions or take actions that are not in their best interests. Unfortunately, cases of individuals influencing elders to leave their wealth to them are common. These individuals may come into the elder’s life, take control of finances, and cut off communication with other family members under the guise of caretaking. In these cases, family members should notify attorneys and adult protective services.

How important is estate planning in mixed marriages?

Individuals starting over again in a new marriage must speak to an estate planner. This meeting is especially true when children from previous relationships are involved. At this stage of life, perhaps both individuals own properties and have accumulated many assets and wealth. However, this wealth is probably not even. The couple should discuss how they would like assets distributed after death with an estate planning attorney. Moreover, transparency for the family members involved is crucial to avoid future litigation between step-children.

Engaging in proper estate planning now enables families to prevent probate litigation in the future. Contact Law Stein Anderson today to speak with an expert probate litigator.