Estate or Probate Litigation

What Is Estate Litigation?

Estate litigation refers to any legal dispute over property bequeathed to family members and other beneficiaries in a deceased person’s will or trust. The litigators in these disputes may try to invalidate the decedent’s will for any of the following reasons:

• The will was never properly executed. Perhaps there were no witnesses to the signing of the will, or the will was not signed at all. In Arizona, the testator (the person signing the will) must be of sound mind and 18 years of age or older. The will must be signed by the testator and two competent witnesses. The witnesses cannot be beneficiaries of the will or related to the testator.
• The decedent was under undue influence by another person pressuring them to revise their will.
• The decedent signed the will due to fraud or misrepresentation. In this case, the will was represented to them as some other type of document, but unbeknownst to them, they were actually signing a will.
• The decedent did not have the mental capacity to sign the will. Legal capacity requires that the person understands the purpose of the will, is aware of the general nature of their assets, and can recognize their beneficiaries.

What Does An Estate Litigation Attorney Do?

The primary role of an estate litigation attorney is to ensure that the wishes of the decedent are carried out. The attorney works primarily with the executor of the estate, or anyone who is challenging the will or the personal representative’s performance.

The estate litigation attorney’s duties may include:

• Determining the validity of the will;
• Interpreting the provisions of the will;
• Determining how the assets will be divided among the beneficiaries; and
• Overseeing distribution of the estate’s assets.

How Are Disputes Resolved?

Estate litigation attorneys represent clients’ interests in the outcome of the dispute. If the attorney cannot resolve the disputes, the next step might be arbitration or mediation, which are types of alternative dispute resolution. In mediation, a neutral third party called a mediator helps the beneficiaries resolve their issues and facilitates a fair resolution for all the parties involved. Arbitration is more like a trial, where the arbitrator serves as a judge. Just as in a trial, the arbitrator hears all parties’ arguments and then makes a binding decision. 

If all parties cannot agree to a pre-court resolution, the case then goes to trial before a judge. This will be a “bench trial,” which means a jury is not involved. The judge’s ruling is final, but it can be appealed to a higher court.