A big courtroom battle over a deceased loved one’s will may make for a great TV or a gripping movie scene, but when it happens in real life, it’s incredibly stressful and painful, as the not-quite-healed wounds of grief are reopened.
While we try to prevent these situations through good estate planning, sometimes probate litigation is simply unavoidable, in which case the probate attorneys in Robinson & Henry’s Castle Rock, Colorado Springs and Denver offices are here to handle your case with care and sensitivity, while fighting for your best interests.
What is probate litigation?
Probate law governs how an individual’s possessions and assets are distributed after death. Even if the deceased had a will, it’s still up to a probate court to distribute the estate per the instructions in the will. Most of the time, these matters are routine and handled without conflict. However, there are times when legal contest arises, which is when probate litigation becomes necessary.
By definition, probate litigation is a lawsuit filed by a probate attorney in a Colorado probate court when there is, for example, a dispute over a will. Probate litigation can also become necessary in situations where a person has become incapacitated and can no longer manage his/her affairs, requiring a guardian and/or conservator, in situations where there is a dispute regarding who should be a guardian and/or conservator or in situations where someone is suspected to be abusing his/her role of guardian or conservator.
Probate litigation can also become necessary in situations where a fiduciary or power of attorney is suspected of misconduct.
Click here to read about three common probate myths.
Common probate litigation issues
There’s no strict formula for determining what situations will lead to probate litigation, but there are certain scenarios which may prove to be more high risk than others, increasing the likelihood of probate litigation. Here are a few examples:
- Family environments with intense sibling rivalry.
- Remarriages without a prenuptial agreement and/or a revised estate plan.
- Estate plans that omit a child or treat children differently.
Contesting a will
Contesting a will is probably what comes to mind for most people when they hear the words probate litigation. Common grounds for contesting a will in Colorado include:
- Undue influence: if a family member believes the deceased was pressured or coerced into including or excluding individuals in his/her will, then that can be grounds to contest.
- Failure of formality: if the testator (the person who created the will) failed to follow Colorado requirements for formality – for example, it lacks the signatures of two impartial witnesses – then that can create grounds to contest.
- Mental incapacity: if a family member believes the deceased was not of sound mind – for example, if the testator suffered from Alzheimer’s or dementia – when the will was created and signed, then a family member might contest the will.
Learn more about the grounds for contesting a will in Colorado here.
It’s also important to note that only certain people – called an “interested party” – can legally bring will contests. These individuals are those who would legally be heirs if there were no will and those who were named in previous wills but are now not named.
A probate attorney can help you determine whether you have grounds to contest a will and, if you do, can file a claim on your behalf with the probate court.
Contested conservatorships and guardianships
If an adult becomes incapacitated as a result of an illness or an injury, or is in another way disabled and unable to make decisions for himself/herself regarding his/her care or estate, then a Colorado probate court will appoint someone to make those decisions for the incapacitated person.
Those decision-makers are called guardians and conservators and they can also come into play in situations involving a minor child. To learn more about these roles and how understanding the difference between them factors into your Colorado estate plan, click here.
Contests over conservatorships or guardianships often arise from situations where family members disagree about who should be appointed to these roles and/or when a current conservator or guardian is suspected of fraud or abuse. A probate attorney can also help determine if an incapacitated person needs a guardian or conservator, help determine who should serve in those roles and help get the roles assigned in probate court.
In Colorado, a fiduciary is an individual serving as a personal representative of an estate, a trustee of a trust or an agent under power of attorney. A fiduciary is responsible for fiduciary duty both to the beneficiaries and to the creditors of a trust/estate; he/she must settle the affairs of an estate and is expected to always act in the beneficiaries’ best interest.
Unfortunately, there are situations in which a fiduciary is suspected of not acting in a beneficiary’s best interest, whether intentionally or, due to lack of knowledge and experience, unintentionally. Regardless of the intention, the failure of a fiduciary to fulfill his/her duties can have big consequences for an estate or trust and, ultimately, its beneficiaries.
Click here to read about the legal duties of a fiduciary and to learn how to spot a breach of duty.
If you suspect a fiduciary of mismanaging a loved one’s trust or estate or in any way violating his/her fiduciary responsibility, then it’s important to contact Robinson & Henry to schedule an assessment with one of our probate attorneys. Our attorneys can help find a solution, whether through negotiation or, if necessary, litigation.
Colorado probate litigation attorneys
Probate litigation matters are usually fraught with intense emotions, often pitting family members against each other during times of grief. When so much is at stake, it’s critical to find an experienced probate attorney you can trust to act in your best interest while handling your case with sensitivity and compassion, like those at Robinson & Henry. Contact us at 303-688-0944 to schedule an assessment with a probate attorney in our Castle Rock, Colorado Springs or Denver, Colorado offices.