Probate Litigation Attorney: When Do You Need One?

Are you questioning what a loved one has done with their estate or facing questions about how you are administering a will, estate, trust or trust estate? A probate litigation attorney can help. In this blog post, we will discuss when you need to hire a probate litigation attorney and the common disputes they handle such as contesting a will and breach of fiduciary duties. As an expert in trial law who is familiar with estates planning issues and court processes involved in litigating them, our attorneys and associates at Collateral Base have got your back.

What is a probate litigation attorney?

A probate litigation attorney is a trial lawyer who is experienced in wills, trusts, and estate planning issues. These lawyers matters such as contesting a will or disputing a trust that require court resolutions. It’s important to note that there is a difference between a probate litigation attorney and an estate planning attorney, with the former being more experienced in trial preparation. You should consider consulting with one whenever you have questions about how someone is administering the testator’s estate or if you’re an executor or trustee facing inquiries about your administration of it. Lawsuits often arise, so find a good law office with an experienced group of probate lawyers.

Probate litigation attorneys handle disputes related to estates, including contesting a will and mental incapacity challenges.

Probate litigation attorneys offer guidance on various disputes related to estates, including but not limited to contesting a will under suspicious circumstances, undue influence claims where someone has taken advantage of another individual for their benefit, mental incapacity challenges against the validity of decisions made by the deceased and breach of fiduciary duties committed by executors or trustees appointed by them. Probate litigation hearings usually occur in county probate courts where the decedent died; thus having an attorney familiar with that county can be beneficial for your case’s success.

Difference between a probate litigation attorney and an estate planning attorney

Probate litigation attorneys and estate planning attorneys have distinct roles in the legal field. While both deal with inheritance and asset distribution, they differ in terms of when they are needed and how they approach legal matters. Probate litigation attorneys handle disputes that arise during the probate process, including wills, trusts, and estates. They focus on resolving conflicts over these issues in court. On the other hand, estate planning attorneys help clients plan for their future by creating legal documents to protect assets and ensure they are distributed according to their wishes; however, they do not typically get involved in trials or trial preparation issues like a probate litigation attorney does regularly.

When do you need to hire a probate litigation attorney?

A probate litigation attorney should be consulted whenever there are questions or disputes about a loved one’s estate, trust, or will. Common disputes that require the assistance of a probate litigation attorney include contesting a will, addressing undue influence claims, challenging mental incapacity judgments and breach of fiduciary duties. It is important to note that these disputes often involve court hearings and trials in county probate courts where the decedent lived or where the trust is being administered, so it is essential for your chosen probate litigation attorney to have familiarity with that specific area.

Contesting a Will

Grounds for contesting a will can include suspicion of undue influence, mental incapacity, and breach of fiduciary duties. To contest a will, potential heirs must meet certain requirements such as having legal standing and filing within the specified time frame. The potential outcomes of contesting a will include having the document declared invalid or modified to reflect the true intentions of the decedent.

  • Grounds for Contesting: Undue Influence, Mental Incapacity & Breach of Fiduciary Duties
  • Requirements to Contest: Legal Standing & Timely Filing
  • Potential Outcomes: Invalidating or Modifying Will

Undue Influence

Undue influence is a situation in which an individual with power takes advantage of another person. This can often result in a will or trust being changed under suspicious circumstances, and is one of the most common reasons for contesting a will. Signs that undue influence may have occurred include sudden changes to estate plans after significant events such as strokes or hospitalizations, and unnatural beneficiaries being added to the plan. If you suspect undue influence has taken place, it’s important to challenge the validity of the document in court.

Challenging the validity of a will due to undue influence requires legal assistance from a probate litigation attorney who is familiar with trial preparation issues and court processes involved in contesting a will and disputing trusts. Probate litigation attorneys are experts at resolving disputes related to contested wills, trusts, and estates by routinely representing clients facing claims for breach of fiduciary duties or mental incapacity while seeking suspension/removal/replacement/damages against executors/trustees/beneficiaries/heirs who failed their obligations under law instructions provided by decedents/testators/grantors/creators/settlors during their lifetimes.

Mental Incapacity

Determining mental capacity is crucial during estate planning as it ensures that the individual making decisions about their assets and beneficiaries is of sound mind. Signs of mental incapacity in an individual include forgetfulness, confusion, difficulty communicating thoughts, and impaired judgment. Failing to address mental incapacity issues during estate planning can have severe consequences such as disputes among family members and probate litigation proceedings that may require the intervention of a probate litigation attorney. It’s essential to work with an experienced attorney who specializes in these matters to ensure your loved one’s wishes are carried out appropriately.

Breach of Fiduciary Duties

Breach of fiduciary duties can occur in probate proceedings when an executor or trustee fails to fulfill their obligations as a fiduciary. The types of fiduciary duties involved include acting in the best interests of beneficiaries, avoiding conflicts of interest, and managing assets responsibly. Proving breach of fiduciary duty requires evidence that the executor or trustee acted outside their scope or failed to meet their legal obligations. Legal remedies for breach of fiduciary duty may include removal or suspension of the offending party and recovery of damages caused by their actions. It is crucial to seek the guidance and representation from a probate litigation attorney when faced with such issues.

Do you need a probate litigation attorney near you?

Understanding Probate Litigation is crucial if you find yourself in a dispute related to the assets of a deceased person. Common issues that lead to probate litigation include disputes over the interpretation of wills, distribution of assets, and creditor claims. In such cases, hiring a Probate Litigation Attorney can help you navigate the legal process and reach an amicable resolution.

Knowing when to hire a Probate Litigation Attorney is critical for resolving disputes effectively. An attorney can provide valuable guidance on how to proceed with your case and represent your interests in court. Whether you are seeking legal action or defending against it, consulting with an experienced attorney near you can save time and money by preventing costly mistakes down the line.

What advice would you give to someone looking to hire a probate litigation attorney?

If you are looking to hire a probate litigation attorney, there are a few things to keep in mind. First, look for an attorney who has experience in probate litigation and is familiar with the court processes involved in contesting a will, disputing a trust, and other estate planning issues. It is also important to find an attorney who is familiar with the county probate court in which the case will be heard.

When meeting with potential attorneys, be prepared to ask questions and discuss your case in detail. Ask about their experience, success rate, and approach to handling estate disputes. It is also important to discuss fees upfront, as probate litigation attorneys can be expensive. Make sure you understand their billing structure and what is included in their fees.

Finally, trust your instincts and choose an attorney who you feel comfortable working with and who has your best interests in mind. Estate disputes can be emotionally charged and complex, so it is important to have an attorney who can guide you through the process and make sure your rights are protected.


Be sure to research the attorneys you are considering carefully, and take your time making a decision. Remember, hiring the right probate litigation attorney to handle your dispute can make all the difference in the outcome of your case. By taking the time to find an experienced and knowledgeable attorney who is a good fit for you, you can have peace of mind knowing that your case is in good hands. Don’t hesitate to ask for referrals from friends or family members who have gone through similar situations, and always trust your instincts when making a decision. With the right attorney by your side, you can navigate the probate litigation process with confidence and achieve a positive resolution to your dispute.

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Thomas Howard

Tom Howard is an experienced lawyer and the leader at Collateral Base. He has been working in law and business consulting for over 15 years and focuses on helping businesses in the cannabis industry. Tom guides them through tricky rules, helps them get licenses, and finds money for their projects. He has helped clients in several states and is a Certified Ganjier, which means he's an expert in cannabis. Tom also runs a well-known YouTube channel called "Cannabis Legalization News," where he shares updates and explains cannabis laws and industry news.

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