Michael L. Dubois, P.A. Attorney At Law

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(207) 408-3636

Michael L. Dubois, P.A. Attorney At Law

The fact that someone had accumulated assets during the course of their life and failed to properly prepare an estate plan increases the risk that there will be litigation following the death of the decedent. The purposes of creating a last will and testament are to minimize the risk of litigation and direct the distribution of the deceased’s estate consistent with their wishes. The decedent is typically very familiar with the heirs and is able to create a distribution plan consistent with this familiarity. If a decedent does not properly plan for the distribution of their estate, then it creates issues that allow the heirs to litigate over everything, including who is to be the personal representative and how the property should be distributed.

How Does Probate Litigation Affect The Probate Process Overall?

Any estate litigation would increase the cost of estate administration expenses. Maine probate law provides that if a personal representative is involved in the estate litigation, then the personal representative is entitled to recover their fees directly from the estate. In addition, there are other estate expenses that come from litigation which will be paid for by the estate. These fees and expenses will reduce the overall value of the estate and impact the heir’s proportionate share of the estate. The emotional toll on the family relationship is also significant. It is not uncommon to have relationships permanently affected as a result of extensive probate estate litigation.

Who Is Legally Able To Contest A Will Or An Estate?

A person has to have legal standing to challenge the validity of a will or the distribution of estate assets. This would include any heir to the estate. A creditor can also challenge the estate distribution, particularly if it affects any valid claim that creditor may have against the estate.

How Can The Validity of A Will Or A Trust Be Determined?

There are certain formalities necessary to establish the validity of a last will and testament. It must be signed by the testator and must be witnessed by two persons to be valid. One way that a person could challenge the validity of a will is to claim the will is not valid because it failed to comply with these mandated formalities. There are formalities related to the creation of a trust as well. In addition, if the evidence supports a finding that the descendant was incompetent at the time of the execution of the will, that would be another way in which a person could challenge the validity of a will. Likewise, if there is evidence that would support a finding that someone had been unduly influenced, then that could form the basis for a valid challenge to the validity of a last will and testament.

The validity of a will or trust determination would be left to a trial judge based upon factual evidence submitted to the court at trial.

Can A Decision Made By The Probate Court Judge Be Appealed?

Probate courts are just like any other trial court in the state of Maine. The procedures are governed by the Maine Rules of Probate Procedure and the Maine Rules of Civil Procedure. Evidence that is presented to the court is governed by the Maine Rules of Evidence and all other procedural mechanisms available to any litigant in any court are available in the probate courts. The process is similar in the sense that both parties present their cases in a trial setting. Both parties have the opportunity to be fully heard. All parties are provided with proper notice at all stages of the proceedings and all parties have available to them post-judgment procedures, as in any other case, including the right to appeal to the highest court.

How Can We Avoid Probate Litigation?

A properly developed estate plan would minimize the likelihood of probate or trust litigation. In developing an estate plan, individuals can avail themselves of the various ways to establish and hold assets that bypass the probate process entirely. One example would be to hold bank accounts or real estate jointly with your spouse, which create a right of survivorship. The right of survivorship provides that the survivor of the two would take the property automatically by operation of law. Payable on death accounts can also be used to avoid probate. In those circumstances, there is no need to probate the estate and no potential for any litigation.

For more information on High-Risk Factors For Probate Litigation, a case evaluation is your next best step. Get the information and legal answers you are seeking by calling (207) 408-3636 today.

Michael L. Dubois

Call Now For A Case Evaluation
(207) 408-3636