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Estate Litigation Overview Part 1 – Initiating Litigation

Estate litigation is something that can happen to any estate regardless of how simple it is, or how complicated an estate plan accompanies it. While creating a good estate plan will reduce–and sometimes drastically so–the possibility that estate litigation could arise, you cannot completely discount the possibility.

A lot of people confronted with an estate litigation situation have no background in the law, and have never been a part of a lawsuit. Understandably, the litigation process can seem intimidating and confusing, as well as serve as the source of a lot of stress.

So, today we are starting a multi-part blog post on the litigation process. Through this series we will explain the basic litigation process and what happens at each stage so you can feel more comfortable if you are ever part of an estate litigation situation. To start, we are going to look at how estate litigation begins.

Estate Litigation: Common Causes

Estate litigation can arise for number of reasons. In general, the more value an estate has, the more likely litigation will erupt. This is simply because litigation is costly, and if there is not a lot to fight over, initiating litigation is usually not economically viable.

When an estate battle erupts, it’s often over the issue of inheritances. Did the decedent have the ability to craft a valid will? Was the will unclear or contradictory in its inheritance distributions? Is the current executor of the estate mismanaging estate funds or acting improperly? Such issues can easily lead to litigation.

Other litigation causes can stem not from death, but from incapacitation. Is the incapacitated person’s current spouse taking advantage of his or her position to the detriment of that person’s adult children from a previous relationship? Is the incapacitated person receiving the kind of care or medical treatment he or she would have wanted?

Estate Litigation: Starting the Process

Estate litigation begins when one party, called the plaintiff, files a lawsuit, called a complaint or a petition, with a court. This court, a probate court, is a special kind of court that only hears these kinds of cases. (In North Carolina, the probate court is known as the Clerk of Superior Court, but it serves the same purpose as probate courts in other states.)

The complaint will detail the reasons the plaintiff if filing the lawsuit and name the people or organization who are being sued, known as the defendant(s). Note, the defendant in many estate litigation cases is the estate of the deceased person, not that person’s actual family members, though they too can be named as defendants depending on the circumstances. The complaint will also ask the court to make a specific ruling, or take a specific action.

Next week we are going to take a look at what happens after someone files an estate litigation case, and what the process looks like for those involved.

Next Article

Estate Litigation Overview Part 2 – The Discovery Process

Once someone has filed a new estate lawsuit, the discovery process begins. Discovery is a stage of litigation that takes…

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