The death of a relative is a challenging time for any  dy, and disputes among family members only add to the stress of an already painful situation. You should be able to grieve your loved one in peace—rather than worrying about who gets what and who is angry with whom. Why does your cousin get the jewelry? What did Uncle Joe ever do to deserve the house?

Unfortunately, families are what they are, and these issues are sometimes unavoidable.

If you need to figure out the ins and outs of a deceased individual’s estate, the smartest thing you can do is hire an attorney to deal with the probate litigation. Massachusetts Probate attorneys at BK Law can work with you through the process and help you to understand how probate laws work.

Read on to find out exactly what’s involved in probate litigation, the different types of probate litigations, and how an attorney can help you resolve these family battles.

What Is Probate Litigation in Massachusetts?

Probate litigation refers to court disputes among the survivors regarding matters related to guardianship, powers of attorney, and contesting the will or living will.

When a court begins the process of probating the estate, it first identifies the deceased’s assets, manages tax payments and expenses, and then distributes the estate property across the beneficiaries or heirs as provided in the will. If there’s no will, then distribution proceeds per state laws regarding intestate succession, which basically means distribution is determined by law.

Most issues are fairly standard and don’t tend to cause any disputes. However, there are occasionally issues that cause conflict. These issues could include:

• Questions regarding the person’s death
• Mental incapacity
• Validity of the will
• Interpretation of the will
• Who is appointed the guardian
• Guardian’s conduct
• Modifying or reforming trusts
• Termination of trusts
• Beneficiaries suing executors

Family dynamics can play a big part in whether probate litigation will become an issue, including multiple marriages, lack of prenuptial agreements, sibling disputes, and generally problematic families.

If you ever need to probate an estate, contact a probate lawyer to help walk you through your legal rights. If you’re a beneficiary or the heir originally identified in a will, you’re most likely to be the subject of legal disputes that may arise.

Who Are the People Potentially Involved in Probate Litigation?

It can be helpful to be aware of probate terminology so you know what’s being discussed by attorneys and courts.

Key terms/roles you’ll likely hear mentioned include:

• Beneficiary: person receiving property from a will
• Heir: person expected to inherit when there is no will
• Executor: person named in the will and charged with probating the estate
• Administrator: person in charge of an estate where there’s no will
• Decedent: person who died
• Testator: deceased person who created a will
• Probate estate: property owned by the decedent

When Do I Need to Hire a Massachusetts Probate Litigation Attorney?

A few of the reasons you should hire a Massachusetts probate litigation attorney include:

1. The Will Is Contested

If the will is contested during probate in Massachusetts, any progress on the case will immediately be halted until the litigation is resolved.

Will contests add additional steps and difficulty to the probate process. Until the probate court decides whether the original will is valid, probate cannot take place because the court doesn’t know who the legal heir truly is. If you’re trying to probate an estate and the will is contested, you should hire an attorney to inform you of your rights and your options.

1. Insolvency

If you’re dealing with insolvency, reach out to an estate lawyer for assistance. Insolvency is when an estate has declared bankruptcy. As you might imagine, this process can be incredibly stressful as it means that someone will be legally responsible for repaying the remaining debt. If the debt is not settled, the creditors or the government could take ownership of the estate and its assets.

But the question is: who is liable? The answer depends on the beneficiary or heir’s relationship with the original owner. For instance, if the beneficiary/heir had a joint bank account with the original owner, then they may be responsible for paying the remaining debt.

You should get in touch with an attorney if you want to dispute the creditor’s claims or you’re not sure who is responsible for settling the debt.

1. Trust Contest

If the decedent set up a trust before their death, but you don’t believe it was set up correctly or you don’t think the trust is legally binding, then you may be able to remove the trust from the will. An attorney can help you to do this.

Probate Litigation Examples

Probate litigations happen for many different reasons, but here are some of the most common types of litigation that can occur during probate:

• Will contest: This is when the probate court or decedent’s friends/family question the validity of the will because of potential influence on the loved one’s decision or concerns about their lack of capacity. Fraudulent concerns can also prompt a will contest.
• Administrator appointments: Becoming a beneficiary is a huge responsibility, and because of this, family legal disagreements regarding who should administer the estate are common.
• Mistakes in a will: If the will was not executed properly and mistakes are found, then the probate court may conclude that the will is invalid. Additional legal steps will have to be taken.
• Breach of fiduciary duties: If you think the administrator or executor has failed to carry out their duties properly, then there could be litigation around their duties or their removal as executor.

When Does Probate Litigation Apply to Me?

How do you know if you may have to pursue litigation to protect your interests in probate? With so many reasons for disputes, it can be hard to know when probate litigation applies to you.

Essentially, if you have reason to think there’s been misconduct by the executor or administrator or the process has stalled, litigation may be an option for you.

Examples of misconduct could include:

• Lack of communication. If you haven’t been provided with a copy of the will, or if the executor doesn’t respond
• When a year or more has passed and the process has stalled

When Should an Heir or Beneficiary Begin Probate Litigation?

For the heir or beneficiary, probate litigation can be incredibly difficult as it can delay the distribution of the estate.

As a result, the heir or beneficiary typically wants to avoid litigation to make sure probate is carried out as quickly as possible. That said, here are some examples of when the heir or beneficiary may consider beginning probate litigation:

• The will is invalid, and the listed heir is no longer believed to be the “correct” one; they may want to dispute this.
• If unknown creditors contact the heir, the heir may have grounds to dispute the creditors’ claims if they think they’re not liable to pay back the debt
• If a second family is involved and the heir thinks that family is wrongfully trying to claim ownership of the estate or are refusing to pay assigned outstanding debts
• If you’re the heir, and you believe the administrator has not carried out their duties according to the decedent’s wishes, then you could remove them from their position
• The heir may challenge the power of attorney if they believe the agent (the person appointed to act on behalf of the deceased) is acting improperly or abusing their power

What Rights Does a Surviving Spouse Have in Massachusetts?

In Massachusetts, if the person has died intestate, the surviving spouse will be able to inherit up to $200,000 of the property if there are no descendants but there is still a parent.

If there are no parents or children or great-grandchildren, then the surviving spouse will be able to inherit the entire property.

How Would I Know If I Need to Contest the Will?

How can I tell if there’s something wrong with the will and when do I need to contest?

It can be difficult to know if you need to contest a will, but here are a few indications:

• If a sibling gets a bigger share of the estate than expected
• If you know that the decedent was having problems with their mental or physical health and assets are split unequally amongst family members
• The signature doesn’t match up to past documents signed by the decedent

Any of the above could mean the will was signed under undue influence or that some other form of compromise has taken place.

What’s the Difference Between a Will Contest and a Trust Contest?

The difference between a will contest and a trust contest is that a will contest is when someone challenges the legitimacy of a will. A trust contest is when probate court questions whether a trust set up by the deceased is valid.

What if My Deceased Relative Changes the Power of Attorney in Massachusetts?

A power of attorney is a legal document that gives someone permission to act on behalf of another person. But can you challenge the power of attorney if you don’t agree with it?

Sibling disputes over a power of attorney are common, especially if the deceased relative changed power of attorney at the last minute.

If you disagree with a power of attorney, you should get in touch with a lawyer to understand what your rights are and whether you have the right to change a power of attorney.

What Are the Duties of the Executor or Administrator?

The executor or administrator is the person who has been given the job of administering the estate. This is different from a beneficiary or heir who inherits all or part of the loved one’s remaining assets.

Responsibilities of the administrator during probate can include:

• Liability for creditor claims
• Administration of the estate according to the decedent’s wishes
• Paying outstanding inheritance and capital gains tax
• Acting in the best interest of the estate during the administration process. This means they’re responsible for the upkeep of the estate, and usually, they’ll represent the estate in court if there’s any probate litigation.

Under normal circumstances, the administrator has up to three years to administer an estate. However, this law may not apply if heirs are being determined, if the property was jointly held by a surviving spouse, or if the administrator is eligible for voluntary administration (a simplified version of probate).

What Are the Remedies and Damages in Probate Litigation?

Damages and remedies in probate litigation include a number of different outcomes.

One of the most common outcomes is having the personal representative removed. Here are a few reasons this may be allowed:

• Mismanagement or fraud
• Unqualified or incapable of proper execution of duties
• Wrongfully neglected the estate
• Removal is necessary to protect estate

It is also possible to have the court instruct the personal representative to take specific action or refrain from doing something objectionable.

If the personal representative’s actions have resulted in a reduction in the estate’s value, they may be ordered to pay monetary damages. Situations that could trigger monetary damages include:

• Loss or depreciation due to breach of duty
• Profiting through the breach of duty
• Bad faith actions such as taking estate property, using undue influence over the decedent or others, and elder abuse

What Is the Cost of Probate Litigation?

Calculating the cost of probate litigation can be difficult without knowing the details. It depends on how complex the litigation is and how long it may take.

Attorney fees are the direct costs associated with probate litigation. How much you’ll pay will depend on your attorney and the length of your case. Probate lawyers usually use one of three charging methods: hourly, flat fee, or a percentage of estate value.

There may also be other administrative fees for filing complaints.

When you meet with your attorney, be sure you’re clear on the fee structure and any additional costs before proceeding.

How to Pay for Probate Litigation

If you hire an attorney to assist you with probate litigation, you will need to pay their fees according to the terms laid out in your agreement. If the fee structure is hourly, your attorney will bill you for the hours worked and you’ll pay according to the invoice. If the fee structure is contingency, you won’t have to pay anything upfront and will only be charged if there’s a successful outcome in your case.

Always get clarity on payment expectations before hiring an attorney.

Contact BK Law for Help With Probate Litigation

If you’re facing probate litigation, you don’t have to face it alone. Our experienced probate litigation lawyers at BK Law have successfully helped countless clients deal with probate litigation. We know probate law inside and out, and we’re always prepared. Nothing surprises us.

Give our Boston law offices a call today to speak with a member of our accomplished probate law group. We’ll get you scheduled for a consultation and answer any and all questions you may have regarding your situation.