Today, we’re going to talk about how and when common estate disputes can arise in probate cases.
The way litigation happens in probate is actually very different than the way it happens in other types of courts or in other types of cases.
My name is Erik Broel. I’m the founder and CEO of Georgia Probate Law Group.
We’re a law firm focused exclusively on helping families after they’ve experienced the death of a loved one.
We do a lot of estate and trust litigation, and we encounter these kind of issues all the time.
We also help families in uncontested situations where the primary focus is on ensuring that the estate is settled correctly and everything is done properly. So let’s dive in.
We’ve done a couple of videos where we’ve talked about the three phases that every estate will go through, where you have someone appointed to represent the estate, you then do the work of settling the estate, and finally you close the estate through distribution and discharge.
We’ve also talked in a different video about the five parts of every dispute. You have pleadings where you make allegations; you have discovery where you do an investigation; motions, where you ask the court to do something; the final trial or hearing of the matter, and then potentially an appeal.
What we’re going to talk about today is how do these two things interact and what are some of the most common disputes.
Disputes in the appointment phase
Let’s start with the appointment phase and we’ll start with an example.
In the appointment phase, a common example of a dispute is a will is filed with the court and another party comes forward and says, “I don’t think that that will is valid. I think it’s a fraud.”
We’re asking the court to declare that that will is invalid.
Those are the pleadings that are made, and that starts us on a dispute.
We go from the appointment phase to the first part of a dispute, pleadings.
Then, we’ll proceed forward to discovery, where we’ll look for evidence to support the allegations that are made.
There may be some motions made in the case.
Finally the case will proceed to court to a trial or a hearing on that particular issue of whether or not the will is valid. Once that trial or hearing occurs, the court will have rendered its decision and we will come back over here to where we left.
You’ll notice that this entire dispute process happened inside of the first phase of an estate and we really didn’t move very far.
You can think of a dispute that occurs in an estate as a detour, where we have to go through this process and then come back.
Now that we know whether or not the will is valid, we either have an executor appointed if that will is valid, or if it’s invalid we may have an administrator appointed right here.
That allows us to continue forward with settling the estate in the estate process. So the estate process is essentially been paused while the dispute is going on.
That’s an example of a dispute in the appointment phase.
Disputes in the administration phase
In the administration phase, one example of a dispute would be:
“I don’t think what the executor is doing is right. I think that they’re not following the duties that they have to the estate. And so Judge, I would like an accounting of everything in the estate because I don’t even know what’s going on. And I would also like for you to remove that executor.”
What would happen here is very similar.
Those are the allegations made, and we would go up here to the pleadings part of a dispute, and that would set off discovery, motions, we’d go to a trial or a hearing, the court would render its decision, and the court would either say:
- “Yes, I agree, I think this executor should be removed”
- “No, I don’t agree. I’m going to give this executor another chance. And executor, you need to follow these guidelines.”
While this is going on in discovery, we can get a lot of information about the estate through that process. If there are questions about what has occurred or not occurred, discovery can be utilized for that.
Disputes in the distribution and discharge phase
Then we move to the distribution and discharge phase, and a common dispute that can come up in the final phase is a dispute over the amount of a distribution or inheritance that’s going to be sent out where the person is questioning expenditures or questioning debts that were paid. Or it could really be about anything that’s happened.
Remember, one of the things the executor is looking for in this final phase is they would like to have that liability shield put in place to protect themselves in the future.
In order to get that liability shield our executor has to file a discharge petition, and when that petition is filed all parties are given an opportunity to object to it if they have not consented to it.
For example: an heir of the estate that objects to our discharge petition and they say, “The executor hasn’t done everything correctly. I think mistakes were made.”
That launches us back to the pleadings phase with whatever allegations, whatever those mistakes are that are alleged.
We then do discovery, we have an investigation on that, there may be motions, we go to a trial or a hearing on the matter. And at that point the court is going to decide either:
- “I’m going to go ahead and grant the discharge petition because I don’t think there were any mistakes made, or the mistakes made weren’t material.”
Or, the court might say:
- “I think there were mistakes made. The executor needs to fix these things before that discharge is going to be granted or going to be available.”
Or the court may remove the executor. The court has broad discretion in these cases.
So, this is how these two parts interact. And these are some examples of common estate disputes.
This is a topic that comes up all the time in probate cases, especially when there’s a dispute or litigation of any type.
If you have any questions, or you want to talk about your own situation, feel free to call our office at (770) 920-6030. We’d be happy to have a consultation with you.