Litigation is the process of resolving disagreements in court. The probate court deals specifically with the wills and trusts of deceased persons; thus probate litigation refers to court proceedings regarding wills and trusts.
The purpose of a will or trust is to make sure the assets of the testator (deceased) are distributed to beneficiaries according to the testator’s wishes. Sometimes, however, beneficiaries have disagreements or object to the way the estate’s personal representative or trustee administers the estate. When this happens, probate litigation can result.
Reasons for Probate Litigation
Common reasons for probate litigation include:
To Address Fraud or a Violation of State Law
A beneficiary who believes the will or trust has been written or administered illegally might initiate probate litigation to address legal issues.
To Remove a Representative or Trustee
A fiduciary is a person who acts on behalf of someone else. The personal representative of an estate has a fiduciary duty to execute the testator’s will according to its instructions and in the best interests of all concerned. A beneficiary who feels a representative is breaching that fiduciary duty may go to probate court to try and remove the representative.
To Contest a Will
An heir/beneficiary might contest a will in probate court for a number of reasons:
- Undue influence. If a will leaves significant assets to a friend, relative, or caregiver who was with the deceased when the will was written (or changed), that caregiver might have influenced the testator to the caregiver’s advantage.
- Poorly written, unclear, or contradictory will. The will includes obvious errors/ambiguities or leaves some assets unaccounted for.
- Lack of testamentary capacity. There is evidence the testator was not of sound mind (as required by South Dakota law) when writing the will.
- To “quiet title” property. If there are challenges to the estate’s ownership of property/assets, probate litigation might be necessary to establish a clear title.
Are You a Beneficiary or Representative of a Will or Trust Requiring Probate Litigation?
An experienced wills and estates attorney at Northern Plains Justice, LLP can assist you with the complex issues surrounding will contests and other probate litigation. We can also help either a plaintiff-beneficiary or a defendant-representative in a proceeding for removal. Contact us online or call us at 605-644-5003 to schedule a free consultation. We serve clients throughout South Dakota and northwest Iowa.