What’s Probate Litigation?

Probate litigation is the legal process of administering the estate of a deceased person by settling all claims and distributing the deceased person's property under a legal will. Probate litigation interprets the instructions of the deceased, decides upon the executor of the estate and adjudicates the interests of heirs and other parties who may have claims against the estate.

In areas of the U.S. that recognize a married couple's property as community property or as tenancy by the entireties, if a person dies intestate (without having a valid will), his/her estate passes to the surviving spouse without a probate. However, if the estate is not automatically passed to the surviving spouse, it is necessary to probate the estate, even if the deceased left a valid will. A probate litigation court with jurisdiction of the deceased’s estate administrates the disposition of the deceased’s property according to the law of the jurisdiction and the deceased’s intent as presented in the will.

A will normally names an executor who is responsible for carrying out the instructions of the will. If there is no will or if the will does not name an executor, the probate court will appoint one, called an administrator. The probate litigation judge may require that the executor provide a fidelity bond, which is an insurance policy in favor of the estate, and is used to protect against possible abuse by the executor.

Specifics of Probate Litigation

Some of the decedent's property may never enter probate because it passes to another person contractually (such as some insurance policies). Property held in a living trust also avoids probate litigation. After presenting the probate case to the court, the personal representative of the deceased inventories and collects the deceased’s property and pays any applicable debts and taxes. Only then can the remaining property be distributed to the beneficiaries, either as instructed in the will, or under the intestacy laws of the state.

Avoiding Probate Litigation With A Living Trust

Probate litigation can often take several months, sometimes over a year before all of the deceased’s property is distributed. This normally incurs substantial court and attorney costs. One way to avoid probate litigation is to execute a living trust. The creator of a trust transfers ownership of any real property from himself to a trust which he controls and can (usually) revise. Upon death, the beneficiaries in the trust acquire ownership of the property of the trust. Since a probate is a public process, a living trust shields private affairs of the deceased and the heirs from public scrutiny and helps the estate avoid estate tax.

Call The Law Offices of Fitzpatrick & Harrop to speak with an attorney about setting up your living trust. In Chicago, call 312-553-2200; in LaSalle or Grundy County, contact us at 815-942-0071.