Probate Litigation

Probate can be a complex and confusing process, especially when you are dealing with the passing of a loved one. The experienced estate planning and probate litigation attorneys at Davison, Eastman, Muñoz, Paone, P.A can help simplify things so that you can be certain your loved one’s assets are protected.

Probate is the process of administering and settling an estate after a person dies. It is the legal procedure through which a court determines how to distribute your property after you die. It can be a complex and confusing process, especially when you are dealing with the passing of a loved one.

Probate involves paying outstanding bills and distributing property to the rightful heirs. Probate can be lengthy and involve court managed administration if no will or trust has been left by the deceased.
Even if a will has been left, it doesn’t guarantee avoidance of probate. Most property has to be probated. Generally, only property with a named beneficiary, such as life insurance and IRA’s do not have to be probated. Property that is considered “joint tenant property with rights of survivorship,” such as a home owned by a husband and wife or a joint bank account, do not have to be probated. Property held in a trust also does not have to be probated.

The first step in probate administration is to file the will with the court. It includes the following steps:

1. Filing the will. The will must be filed with the probate court in order to be authenticated. If there is no will, heirs must petition the court to be appointed “administrator” of the estate.
2. Collecting Assets. During this stage, an inventory of everything the deceased owned is collected. This inventory needs to be filed with the probate court.
3. Paying bills and taxes. The decedent’s creditors must be notified, debts and taxes owed by the deceased should be paid accordingly. If a federal estate tax return is needed, this must also be filed.
4. Filing tax returns. A final income tax return for the decedent must be filed. Sometimes it is also necessary to file an income tax return if the estate holds assets and earns interest.
5. Distributing property. The assets of the deceased can be distributed by the executor, after a thorough review of the estate and claims.
6. Filing a final account. The executor must file an account with the probate court listing any income to the estate since the date of death and all expenses and estate distributions.

If any portion of the will is disputed, Probate Litigation will occur. In simple terms, Probate Litigation is the act of contenting a will or trust and occurs in the courts. Probate Litigation can happen for numerous reasons, including the following:

1. Challenges over the validity of the will.
2. Guardianship Contests.
3. Trust Modifications.
4. Trust Terminations.
5. Trust Reformation.

Many factors can send a will into probate litigation, including second marriages, sibling rivalry, and a poorly appointed estate executor. The executor can be challenged if heirs feel that they are untrustworthy, disorganized or unable to follow instructions. If an estate plan fails to mention a child, this can also lead to probate litigation.

With over thirty years of experience assisting the community, Davison, Eastman, Muñoz, Paone, P.A can help streamline the probate process or create an estate plan to prepare your family for the future. If you are already struggling with probate and do not know what steps to take next, the attorneys at Davison, Eastman, Muñoz, Paone, P.A can assist you. We can offer guidance about the best options for protecting assets or help you understand your duties if you have been named executor of an estate. If you have any questions about probate, probate litigation or any other estate administration issues, schedule a consultation with one of our attorneys. Our law offices are conveniently located in Freehold and Toms River, New Jersey.